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[Senate Hearing 108-259]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 108-259
 
                   ENVIRONMENTAL PROTECTION AGENCY'S 
                        FISCAL YEAR 2004 BUDGET
=======================================================================

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 26, 2003

                               __________

  Printed for the use of the Committee on Environment and Public Works

                      U.S. GOVERNMENT PRINTING OFFICE

91-254                       WASHINGTON : 2004
_______________________________________________________________________
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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                      one hundred eighth congress
                             first session

                  JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia             JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri        MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio            HARRY REID, Nevada
MICHAEL D. CRAPO, Idaho              BOB GRAHAM, Florida
LINCOLN CHAFEE, Rhode Island         JOSEPH I. LIEBERMAN, Connecticut
JOHN CORNYN, Texaa                   BARBARA BOXER, California
LISA MURKOWSKI, Alaska               RON WYDEN, Oregon
CRAIG THOMAS, Wyoming                THOMAS R. CARPER, Delaware
WAYNE ALLARD, Colorado               HILLARY RODHAM CLINTON, New York

                Andrew Wheeler, Majority Staff Director
                 Ken Connolly, Minority Staff Director

                                  (ii)

                            C O N T E N T S

                              ----------                              
                                                                   Page

                           FEBRUARY 26, 2003
                           OPENING STATEMENTS

Allard, Hon. Wayne, U.S. Senator from the State of Colorado......     4
Baucus, Hon. Max, U.S. Senator from the State of Montana.........    36
Boxer, Hon. Barbara, U.S. Senator from the State of California...    16
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..    26
Cornyn, Hon. John, U.S. Senator from the State of Texas..........    30
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     1
Jeffords, Hon. James M., U.S. Senator from the State of Vermont..     2
Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska......    10
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......     9
Voinovich, Hon. George V., U.S. Senator from the State of Ohio...     5
Warner, Hon. John W., U.S. Senator from the State of Virginia....    28

                                WITNESS

Whitman, Hon. Christine Todd, Administrator, Environmental 
  Protection Agency..............................................    10
    Prepared statement...........................................    38
    Responses to additional questions from:
        Senator Baucus...........................................    89
        Senator Boxer............................................   101
        Senator Clinton..........................................   113
        Senator Inhofe...........................................    41
        Senator Jeffords.........................................    62
        Senator Lieberman........................................    98
        Senator Voinovich........................................    52

                                 (iii)

  

       ENVIRONMENTAL PROTECTION AGENCY'S FISCAL YEAR 2004 BUDGET

                              ----------                              

                      WEDNESDAY, FEBRUARY 26, 2003

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:39 a.m. in room 
406, Senate Dirksen Building, Hon. James M. Inhofe [chairman of 
the committee] presiding.
    Present: Senators Inhofe, Jeffords, Allard, Voinovich, 
Thomas, Murkowski, Boxer, Carper, Warner, and Cornyn.

 OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM 
                     THE STATE OF OKLAHOMA

    Senator Inhofe. Quite often Senator Jeffords and I don't 
agree on everything, but we do agree that we are going to be 
starting on time and running a pretty tight meeting.
    So we want to, first of all, welcome Governor Whitman. We 
are pleased to have you testify before this committee today on 
President's Bush's Fiscal Year 2004 budget proposal for the 
EPA.
    Because the hearing will be well attended and I anticipate 
enthusiastic rounds of questioning, I will ask for opening 
statements to be kept short, under 5 minutes.
    I would also like to start by making three observations and 
then broach a few specifics. My first observation is that 
President Bush's budget for the EPA stresses results over 
bureaucratic mandates and processes: cleaner air, cleaner 
water, cleaner land, as opposed to more paperwork and more 
lawsuits.
    My second observation is that President Bush's budget 
harnesses the power of innovation and technology to address the 
Nation's environmental challenges.
    The third observation is that President Bush's budget 
continues the Nation's strong progress toward a cleaner 
environment. He has proposed the most aggressive Presidential 
initiative in history to reduce emissions from power plants. I 
congratulate this Administration on its environmental record, 
which demonstrates excellence under all honest scrutiny.
    However, some systemic problems have existed at EPA 
virtually since its inception. These systemic problems have 
been recognized by the General Accounting Office, the Inspector 
General, and the Office of Management and Budget.
    Moving into the specifics, I want to thank Administrator 
Whitman for the most comprehensive EPA report on children's 
health to date. Our children's health is of utmost concern, and 
I am pleased that, as a direct result of progressive Federal 
initiatives, there have been significant improvements in 
children's environmental health.
    However, I found the alarming snapshot of information about 
mercury levels to be vague and potentially misleading. Though 
the report stated there was, and I am quoting now, ``some 
increased risk of adverse health effects,'' it failed to 
specify how much risk and which women this would impact. 
Apparently, the risks were overstated. As such, I think it 
unnecessarily, needlessly scared a lot of woman. I would 
appreciate clarification on what to be appears ambiguous 
information.
    This is just another example of concerns I have raised in 
the past regarding the need for EPA to be responsible with 
science and provide sound science which is easily explained to 
the American people. For example, if you listened to CNN 
yesterday, you would assume that 1 in 12 women were in serious 
jeopardy of mercury poisoning, and this just is not true.
    Along with sound science, I have long been concerned with 
the topic of achieving the biggest bang for our environmental 
buck. We need to prioritize our spending to achieve maximum 
health benefits.
    For example, I note that OMB's review of the Air Toxics 
Program at EPA observes, and I quote, ``The program has not 
shown it is maximizing net benefits and proposing the most 
cost-effective regulations.'' I am pleased that, in response to 
this observation, an aggressive plan has been devised to 
increase funding for the Toxic Air Pollutant Program by $7 
million in State grants for monitoring and to help fill the 
data gaps and refocus on maximizing programmatic net benefits. 
We need to make sure that all regulations are cost-effective.
    On the topic of Superfund, I am particularly interested in 
the effectiveness of the program, in no small part since in my 
State of Oklahoma we have Tar Creek, which is the largest 
Superfund site and the most devastating damage anywhere in the 
Nation.
    I was distressed a little bit to hear our Governor 
yesterday say, well, our solution is to file a lawsuit against 
the EPA. I see that as a copout. I would hate to see litigation 
pursued as the answer at Tar Creek because it is something we 
are working on, and I am sure that the Administrator will have 
some comments to make about that. We shouldn't get bogged down 
in processes that would delay the ultimate cleanup of this 
site. I want to focus on results, cleaning the soil, and, most 
importantly, bringing down the levels of lead in our Oklahoma 
children.
    As chairman of this committee, I will continue to work 
closely with you and other Federal agencies, including the 
Department of Interior and the Army Corps of Engineers, that 
these results are quickly in coming.
    Senator Jeffords?

OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Senator Jeffords. Good morning. I will be brief with my 
statement and most of it will be made a part of the record.
    Administrator Whitman, welcome. It is always nice to see 
you, though I realize budget hearings are not the most pleasant 
affairs. However, I want to publicly acknowledge my admiration 
for your commitment to public service and enthusiasm for one of 
the most difficult jobs in Washington.
    It has been a year since you testified before this 
committee on the EPA's budget. Last year you took pride in the 
fact that the Agency budget requested a $200 million increase 
over the previous year's request. I am disappointed that you 
cannot make a similar claim this year.
    If enacted, this budget request would represent about a 6 
percent cut in spending compared to what the President signed 
into law last week and does not even take into account 
inflation. It is my opinion that the Administrator's 2004 
budget request for EPA is inadequate to the task at hand.
    How can the Agency justify the $500 million cut in the 
Clean Water State Revolving Loan Fund? Even the Office of 
Management and Budget has written to me stating that over the 
next 20 years $21 billion in capital funding will be needed for 
clean water and $45 billion will be needed for drinking water. 
I might add that the Congressional Budget Office and others 
have estimated our national water infrastructure needs in the 
range of $300 billion over the next 25 years.
    At a time when the water systems are coping with additional 
cost of security, I don't want to be told that a bean counter 
at OMB has decided that, for budgetary reasons, the State 
Revolving Funds are ready to revolve. I don't believe it and I 
don't think water experts in EPA believe it.
    Last year one bright spot in the budget request was a large 
increase in funding for the Brownfields Program, and I should 
note that EPA is requesting a modest increase this year as 
well. I can only ask, where is the beef? Enacting Brownfields 
funding for competitive grants remains at less than $100 
million, despite the promises of more resources and a new 
authorizing law. It is kind of like ordering a double 
cheeseburger and coming up ``patty short.''
    Speaking of the frustration we authorizers are feeling when 
it comes to appropriations, as you know, new legislation was 
enacted at the end of the last Congress to protect Lake 
Champlain. The new bill authorizes substantially more resources 
than had been requested by the Agency. I hope I can work with 
you to make sure that this is the last budget that will request 
so little in funding for Lake Champlain.
    I am sure that other members will focus their attention on 
the Superfund budget and resources the Agency is devoting to 
its enforcement activities. I would like to voice my 
displeasure with the Agency's responses to the committee's 
request for information.
    Over the past year and a half, we have sent repeated 
requests pertaining to the Agency's proposed changes in the New 
Source Review Program as well as questions pertaining to the 
Administration's Clear Skies proposal. To my dismay, the 
Agency's responses have ranged from inadequate to incomplete, 
and in some cases no response was received at all. This is 
untenable and, unfortunately, not unique. I am also waiting for 
promised responses to my question from the Council on 
Environmental Quality.
    Both you and I are trying to make the environment safer for 
our children and grandchildren. We must strive to do better.
    On the air front, I have been encouraged by the Agency's 
move to better regulate diesel vehicles, but I am concerned 
that the Agency is becoming better known for its ``New Year's 
Eve revisions in the Clean Air Act,'' weakening the requirement 
that the oldest and dirtiest power plants and refineries 
install modern pollution controls whenever they make major 
repairs. My State and eight others that are challenging the 
EPA's actions in court cannot permit our air to become dirtier, 
our mountain vistas smoggier, and our citizenry sicker.
    I am also very deeply concerned with the Administration's 
effort to promote its Clean Skies Initiative. Despite EPA 
claims to the contrary, the proposal would carve up crucial 
aspects of the current law, weakening enforcement and 
dismantling regulation. By delaying compliance deadlines, Clear 
Skies would result in thousands of deaths, asthma attacks, and 
hospitalization.
    Finally, I hope that we can hope to agree to do something 
to guarantee reductions in emissions of carbon dioxide. Global 
warming's damaging environmental and economic impacts are upon 
us. We must act and act soon.
    Thank you. I look forward to your testimony.
    Senator Inhofe. Thank you, Senator Jeffords. Senator 
Allard?

 OPENING STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM THE 
                       STATE OF COLORADO

    Senator Allard. Thank you, Mr. Chairman. I would like to 
join you, Mr. Chairman and Ranking Member here, in welcoming 
Administrator Whitman to this committee. We are all looking 
forward to a great discussion on the ``noncontroversial issue'' 
of the environment and budget.
    As you know, Colorado has a storied history between working 
with the Environmental Protection Agency on Colorado's 
sensitive environmental sites. Our rich resource heritage and a 
variety of resource-based issues forces constant interaction 
between Colorado and your agency. I use the term ``working with 
Colorado'' because that is the relationship I hope the EPA will 
continue to foster, working with the various actors to achieve 
goals in a positive and nonpunitive manner.
    As we discuss the EPA budget request and as funding issues 
are raised, I would like to mention a few other important 
initiatives that have broad-based policy implications as well 
as a budgetary impact.
    During the 107th Congress, Senators Crapo, Specter, and I 
worked with Senator Jeffords and several of our colleagues, 
both Republican and Democrat, to get legislation concerning the 
Office of the EPA Ombudsman passed by the Senate. I just want 
to take this opportunity to reiterate my dedication to getting 
comprehensive legislation passed during this Congress through 
an act to establish an effective, independent ombudsman.
    I also want to reiterate the relationship of the ombudsman 
to the Shaddock Superfund cleanup: that while progress is being 
made and shipments of material will begin very soon, it is this 
project that first brought the importance of the ombudsman to 
light. I will continue to focus on Shaddock until cleanup is 
complete and will work with my colleagues to ensure our 
ombudsman's goals.
    Before I conclude, I would be interested to learn how the 
various EPA programs intend to aid States such as Colorado that 
have suffered, and probably will suffer in the future, from 
ravaging forest fires. This does not mean new money or new 
programs; simply a new way of looking at old programs.
    The ash and debris from a fire destroys the health of 
watersheds, forcing communities to deal with the ramifications 
of not only a destroyed landscape, but with drinking water 
consequences. I would appreciate any help and guidance that 
your agency may offer to address both mitigation and 
preparation to deal with the aftereffect of forest fires, those 
that have occurred and, obviously, will occur in States like 
Colorado again.
    That is especially important with one particular case 
involving a large municipal water supply in Denver, where we 
have from the previous summer the silt and the ash and 
everything washing down into the reservoir that provides all 
the water for Denver. We are in a drought in Colorado, probably 
the worst one in 300 years, and maybe even longer. We have got 
a lot of tree ring experts now in Colorado. But it is a 
problem. I think that perhaps there will be ways in which we 
can get some mitigation there under current programs without 
having to create a new program.
    Mr. Chairman, thank you and, Administrator Whitman, for 
your listening and interest. I need to apologize in advance. I 
have two committees going on here at the same time, and I 
wanted to be here early to have an opportunity to address the 
committee and Administrator Whitman.
    Mr. Chairman, now I yield back my time. Thank you.
    Senator Inhofe. Thank you, Senator Allard. Senator 
Voinovich?

  OPENING STATEMENT OF HON. GEORGE V. VOINOVICH, U.S. SENATOR 
                     FROM THE STATE OF OHIO

    Senator Voinovich. Thank you, Mr. Chairman, for calling 
this hearing. I am pleased that we are holding this hearing, 
and I take our committee's responsibility, oversight 
responsibilities, very seriously.
    In addition, I would like to thank Administrator Whitman 
for being here today to discuss the President's proposed budget 
for the EPA. I know that you have a very difficult job in 
trying to bring a sense of fiscal responsibility to an area 
like environmental protection, and I respect the enormous 
challenges that you have addressed in working out a budget 
proposal, particularly with the pressure that you are getting 
from OMB to keep your spending down.
    I want to personally thank you for serving as the 
Administrator of the EPA and also to thank your husband and 
your family for the sacrifice they are making, so that you can 
serve our country.
    As you know from being a Governor, the burdens placed on 
budget by priorities in one area, such as homeland security and 
national defense, squeeze out other priorities and can leave 
them underfunded. Putting together a budget is a process that 
requires responsible prioritizing and fiscal discipline in 
order to avoid breaking the bank.
    Unfortunately, as is often the case around here, 
responsibility often gives way to rhetoric, and the knee-jerk 
response to those who claim ``it is just not enough'' is to 
offer ``pie-in-the-sky'' budget numbers that are not feasible, 
let alone necessary.
    In 2002, this past Fiscal Year, I think we should know that 
we suffered a budget deficit of $317 billion. In other words, 
we spent the entire $160 million Social Security surplus. 
According to OMB's numbers, even though we have kept 
discretionary spending down in Fiscal Year 2003, and the 
President's 2004 budget keeps discretionary spending to an 
increase of 4 percent--everybody understands that; that is what 
he has got, 4 percent--we will still suffer budget deficits 
close to a half trillion dollars--a half trillion dollars--in 
2004.
    The 4 percent increase in spending is a good start down a 
fiscally responsible path. I am pleased the President forced 
some hard decisions to be made, but still developed a budget 
for EPA that will allow the Agency to continue to focus on 
cleaning up and protecting our environment.
    That being said, there are a few issues in this budget 
proposal that I would like to address today. For example, 
October 30, 2002 marked the 30th anniversary of the Clean Water 
Act. The anniversary is not only a cause for celebration, but 
also a cause to recommit ourselves to achieving the goals of 
the act. We have come a long way since the passage of the Clean 
Water Act in 1972, but we still have a long way to go.
    For example, approximately 45 percent of our waters are 
still not clean enough for fishing or swimming. Clean water has 
been a priority of mine since I was elected to the general 
assembly in 1967 in Ohio and made a commitment to stop the 
deterioration of Lake Erie and to wage what I call the ``second 
battle of Lake Erie'' to bring that around and restore it.
    Last year I worked with my colleagues on this committee to 
pass the Great Lakes Legacy Act and to clean up contaminated 
sediments. While I am pleased the President recognizes the 
importance of this natural resource to the Nation by including 
$15 million in the budget for this program, this funding is 
well below--well below--the $54 million that was authorized. I 
intend to send a letter to the appropriators asking them to 
fully fund the Great Lakes Legacy Program.
    As a member of this committee, I have also worked hard to 
bring attention to the Nation's wastewater infrastructure 
needs. That is why I introduced legislation that would 
reauthorize funding of the Clean Water State Revolving Loan 
Fund. My legislation would authorize a total of $15 billion 
over 5 years and provide improved State flexibility to run the 
program.
    Unfortunately, as Senator Jeffords has pointed out, the 
budget just is not adequate in that area. It really needs to be 
looked at.
    I firmly believe that the Federal Government is responsible 
for paying a fair share of the mandate that we have put on 
local municipalities and sewer districts to take care of their 
combined sewer overflow problems.
    Recently, I was in Akron, Ohio and met with the people that 
were there, and they indicated that they finally have come up 
with a 30-year plan, $370-some million, and they were told that 
that plan doesn't fit the rules. It is too long, that it has 
got to be 15 years.
    I think one of the things that this committee needs to 
consider is that, if we have programs out there where we have 
mandated costs on State and local government, where we truly 
are a partner, that either we ought to come up with the money 
to take care of our partnership or understand that some of 
these local communities don't have the money necessary to get 
the job done.
    Now we have a financial problem here. But let me tell you 
something: The States and local communities in this country are 
really in sad shape today, and I think we need to really start 
to look at some of these deadlines that we have set to see if 
there isn't a way that we can maybe adjust them and, if we 
can't adjust them, then we need to come up with the money to 
pay for them.
    When I was in Akron the other day, I said, ``Well, 30 
years,'' and they said, ``No, it's 15.'' And they said, ``Well, 
tell them that that, if it is 15, then you pay for half the 
cost.'' We defy logic.
    On Monday I had the pleasure of visiting EPA's newly 
created National Homeland Security Research Center in 
Cincinnati and met with Dr. Paul Gilman. By the way, I know you 
wanted to be there and we missed you. By the way, Paul did do a 
good job for you.
    But since the terrorist attacks of September 2001, this 
committee has worked closely with the EPA to identify the 
vulnerabilities of our water system and chemical plants, and to 
find the means to protect them. I know that Senator Jeffords 
and Senator Corzine have worked very hard on these issues.
    Although EPA was not moved into the Department of Homeland 
Security, it is important the Agency be able to carry out its 
responsibilities. We really have to do a better job I think in 
terms of science. You have some money in your budget for 
science. I would like to know, what are you going to do with 
the money, and how have you tried to respond to our concerns 
about the fact that the EPA does not have the folks available 
to do the kind of science that we think needs to be done?
    I think that Senator Inhofe has mentioned that; other 
members of this committee have. I would be interested in 
knowing, what are you doing with the money that you are getting 
and how is Dr. Gilman going to be fitting into that, and what 
is your response to my legislation that says that we need to 
require a science individual in your Department?
    Thank you very much, Mr. Chairman.
    [The prepared statement of Senator Voinovich follows:]
 Statement of Hon. George V. Voinovich, U.S. Senator from the State of 
                                  Ohio
    Mr. Chairman, thank you for calling this hearing on the budget of 
the Environmental Protection Agency. I am pleased that you are holding 
this hearing, as I take our oversight responsibilities very seriously.
    In addition, I would like to thank Administrator Whitman for being 
here today to discuss the President's proposed budget for the EPA. I 
know that you have a very difficult job in trying to bring some sense 
of fiscal responsibility to an area like environmental protection, and 
I respect the enormous challenges that you have to address when working 
out a budget proposal. I personally want to thank you for your 
willingness to serve.
    As you know from being a Governor, the burdens placed on a budget 
by priorities in one area (such as homeland security and national 
defense) squeeze out other priorities and can leave them underfunded. 
Putting together a budget is a process that requires responsible 
prioritizing and fiscal discipline in order to avoid breaking the bank. 
Unfortunately, as is often the case around here, responsibility often 
gives way to rhetoric and the knee-jerk response to those who claim 
``it's not enough'' is to offer pie-in-the-sky budget numbers that they 
know are not feasible, let alone necessary.
    In 2002, this past fiscal year, we suffered a budget deficit of 
$317 billion. In other words, we spent the entire $160 billion Social 
Security surplus and then had to go out into the private markets and 
borrow an additional $158 billion.
    And according to OMB's numbers, even though we kept discretionary 
spending down in fiscal year 2003 and the President's fiscal year 2004 
budget keeps discretionary spending to an increase of 4 percent, we 
will still suffer budget deficits of close to half a trillion dollars 
($468 billion and $482 billion, respectively) in fiscal year 2003 and 
fiscal year 2004.
    The 4 percent increase in spending is a good start down a fiscally 
responsible path. I am pleased that President Bush forced some hard 
decisions to be made but still developed a budget for EPA that will 
allow the Agency to continue to focus on cleaning up and protecting our 
environment.
    That being said, there are a few issues in this budget proposal 
that I would like to address today. For example, October 30, 2002 
marked the 30th Anniversary of the Clean Water Act. The Anniversary is 
not only a cause for celebration, but also a cause to recommit 
ourselves to achieving the goals of the Act. We have come a long way 
since the passage of the Clean Water Act in 1972. But we still have a 
long way to go. For example, approximately 45 percent of U.S. waters 
are still not clean enough for fishing or swimming.
    Clean water has been a priority of mine ever since I was elected to 
the Ohio General Assembly in 1967 and made a commitment to stop the 
deterioration of Lake Erie and to wage what I call the ``Second Battle 
of Lake Erie.'' I have continued that fight throughout my career.
    Last year, I worked with my colleagues in this committee and in the 
Congress to pass the Great Lakes Legacy Act to clean up contaminated 
sediments. While I am pleased that the President recognizes the 
importance of this natural resource to the Nation by including $15 
million in the budget for this program, this funding is well below the 
$54 million authorized. I intend to send a letter to the appropriators 
asking them to fully fund the Great Lakes Legacy Program.
    As a member of this committee, I have worked hard to bring 
attention to the nation's wastewater infrastructure needs. That is why 
I have introduced legislation that would reauthorize funding for the 
Clean Water State Revolving Loan Fund (SRF) program. My legislation, 
the Clean Water Infrastructure Financing Act (S. 170), would authorize 
a total of $15 billion over 5 years and provide improved State 
flexibility to run the program.
    Unfortunately, as we on this committee know, billions of dollars 
have already been spent and billions more are needed to upgrade the 
nation's aging wastewater infrastructure. I firmly believe the Federal 
Government is responsible for paying its fair share. The city of Akron, 
for example, has proposed to spend $377 million over 30 years to fix 
the City's combined sewer overflow problems. Yet, city officials told 
me last week as I toured the City's wastewater treatment plant, that 
the U.S. EPA is pressuring them to do the work in half the time.
    In addition, the Administration's fiscal year 2004 budget proposes 
spending cuts for this important program. What I would like to know 
from you, Administrator Whitman, is how you expect cities like Akron to 
spend millions of dollars for water infrastructure upgrades when the 
Administration plans to cut funding for programs like the Clean Water 
SRF program. In the absence of sufficient Federal funding, what kind of 
assistance can EPA give local communities trying to improve water 
quality by investing in infrastructure upgrades?
    Senator Carper and I introduced legislation in the last Congress to 
strengthen science at the EPA by creating a Deputy Science 
Administrator at the Agency. This legislation was based on a 2000 
National Research Council study (entitled Strengthening Science and the 
U.S. EPA). That report included several recommendations on how to 
improve the research, management and peer review practices at the 
Agency. I know that Chairman Inhofe has a very serious interest in 
ensuring that the Agency utilizes sound science in its decisionmaking--
an interest that I wholeheartedly share. I would like to hear what you 
intend to do to increase the use of sound science at the Agency, and 
whether or not this budget provides adequate funding for that task.
    On Monday, I had the pleasure of visiting EPA's newly created 
National Homeland Security Research Center in Cincinnati and meeting 
Dr. Paul Gilman, the Assistant Administrator of Research and 
Development at EPA. Since the terrorist attacks of September 2001, this 
committee has worked closely with EPA to identify the vulnerabilities 
to our water systems and chemical plants and to find the means to 
protect them. I know that Senator Jeffords and Senator Corzine have 
both worked very hard on these issues.
    Although the EPA was not moved into the Department of Homeland 
Security, it is important that the Agency be able to carry out its 
homeland security responsibilities and work closely with that newly 
created Department. President Bush's fiscal year 2004 Budget request 
for EPA includes $123 million for Homeland Security activities. I would 
like to hear what EPA intends to do with this money and how it intends 
to work with the newly created Department of Homeland Security.
    Again, I would like to thank the Administrator for her attendance 
today, and look forward to hearing her thoughts on these issues. Thank 
you, Mr. Chairman.
    Senator Inhofe. Thank you. Senator Voinovich, you went a 
minute over, so we will give everyone else 6 minutes. Senator 
Thomas?

 OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE 
                        STATE OF WYOMING

    Senator Thomas. Mr. Chairman, I will try to fix it by 
taking four or less. How's that?
    [Laughter.]
    Welcome, Administrator. I, too, have other committees I 
have to go to, but I am very interested in this one, of course. 
Being from the western States, we have sort of a unique 
arrangement, obviously, with some of the things, the public 
lands, and all those things. We had hearings yesterday on 
energy and how we are going to be able to continue to provide 
the kinds of energy volumes that the American citizens now 
utilize. Of course, it has to do with the economy, whether you 
are talking about coal or gas or CO2. We must look 
to the future. In Wyoming we are doing a pilot project on 
carbon sequestration.
    We can, I believe, make use of energy resources and still 
maintain the environment. That is our real challenge. Wyoming 
is a perfect example of where we have been doing that for 
years. We are the Btu Capitol of the Nation and at the same 
time we have the some of the cleanest air in the Nation.
    Also, I hope that we can continue to stress the notion of 
having input and local cooperation between the Agency and local 
people. I agree with the Senator that some of the water 
requirements, and so on, are putting very difficult financial 
stress on some of the small communities, and so we need to do 
that.
    In any event, thank you for what you do, and I know it is 
tough to try to figure out what is the best budget, and so on, 
but I hope we look beyond the budget as to what it is we want 
to accomplish over a period of time, so that we are not just 
totally immersed in immediate things, but have a little goal of 
where we are going to go and have our dollars take us.
    Thank you for being here. Thank you, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Thomas. In my opening 
statement I talked about the fact that this Administration is 
results-oriented, and I think that is exactly what you are 
recommending here.
    Senator Murkowski?

OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM THE 
                        STATE OF ALASKA

    Senator Murkowski. Thank you, Mr. Chairman. Good morning. I 
don't have any opening comments I would like to make at this 
time other than to commend Administrator Whitman. I am looking 
forward to the opportunity to work with you on some issues that 
are of particular interest to my State that are probably pretty 
isolated. Looking at those that are here to listen, they 
wouldn't have much connection with what is going on with our 
fish processors or what is happening up in our Red Dog Mine.
    But I am looking forward to working with you and perhaps 
having an opportunity to sit down and discuss some of our more 
local issues directly with you. So welcome this morning. 
Senator Inhofe. Governor Whitman, you are recognized now for an 
opening statement. Take all the time you want. There's not as 
many people here as we thought there would be this morning. You 
are recognized.

 STATEMENT OF HON. CHRISTINE TODD WHITMAN, ADMINISTRATOR, U.S. 
                ENVIRONMENTAL PROTECTION AGENCY

    Ms. Whitman. Thank you, Mr. Chairman. and to members of the 
committee, I welcome to the opportunity to be back here with 
you to discuss the Fiscal Year 2004 request for the Agency. I 
do have a written statement that I would like, with your 
permission, to submit for the record.
    Senator Inhofe. Without objection.
    Ms. Whitman. First of all, I would like to start, Mr. 
Chairman, by congratulating you on the assumption of the 
chairmanship and indicate I look forward to working with you, 
with the staff, and the other members of the committee as we 
move forward on our shared goals: a cleaner and healthier 
environment for the people of the United States and, as we like 
to say, cleaner air, purer water, and better protected land.
    The President's budget request of $7.6 billion for the 
Environmental Protection Agency provides the funding we need to 
advance those goals and to meet our agency's mission to protect 
human health and safeguard America's precious environment. It 
is a fiscally responsible request that recognizes the many 
competing priorities on taxpayer resources, particularly with 
respect to homeland security and in a time of possible war, 
without shortchanging our commitment to environmental 
protection, and that is an important understanding that we need 
to share.
    The budget request also advances our commitment to building 
strong partnerships with State, local, and tribal governments. 
More than 40 percent of our budget request, some $3.1 billion, 
goes directly for assistance to our non-Federal partners.
    I would like to take just a few minutes to point out some 
of the highlights of the President's request, and then, of 
course, I would be happy to answer any questions that you might 
have.
    To promote cleaner air, the President's budget requests 
$617 million in the next Fiscal Year. These funds will allow us 
to improve air monitoring and analyze and provide $16.5 million 
in grants to State, tribal, and local governments for air toxic 
monitoring. It would also allow us to raise to $23.9 million, a 
$3 million increase, our funding efforts to combat childhood 
asthma.
    In addition, the President's budget supports the 
Administration's Clear Skies proposals. Clear Skies, which 
would require mandatory reduction in power plant emission of 
sulfur dioxide, nitrogen oxide, and mercury by 70 percent, is 
the President's most important environmental legislative 
initiative this year. I look forward to working with the 
committee to move Clear Skies legislation through to the 
President's desk.
    To promote purer water, the President's budget places a 
strong emphasis on our core water programs which have proven so 
successful over the years. We propose to increase spending on 
those programs by $55 million, for a total of $470 million. 
This includes $20 million in the Clean Water Section 106 grants 
and $12 million for Public Water System Supervision grants to 
our non-Federal partners.
    Our proposed budget also includes a $5 million increase in 
grants to help State, local, and tribal governments protect 
wetlands and $20 million to again fund the program we began 
last year to help advance watershed protection efforts in a 
number of additional threatened watersheds around the Nation.
    This budget also seeks $850 million for the Clean Water 
State Revolving Fund, which is less than we requested last 
year, as Senator Jeffords has pointed out. However, the 
Administration is committed to financing the Clean Water SRF at 
this level through 2011, 6 years beyond any previous 
commitment. This means the long-term revolving level of the 
fund will be at $2.8 billion, a 40 percent increase over the $2 
billion commitment that had been made in the last 
Administration, although I will note that there was no 
commitment made in the enabling legislation that created this.
    We also propose to fund the Drinking Water SRF at $850 
million a year through 2018, so that it can revolve at $1.2 
billion a year, a 140 percent increase over the previous goal 
of $500 million.
    Given our proposed increase in the core water programs, the 
current fiscal restraints, and the variety of innovations that 
we are pioneering, we believe that this budget fully supports 
our commitment to purer water across the Nation.
    To better protect the land, this budget includes two 
significant increases. The first, an additional $150 million 
for Superfund cleanup. These additional dollars will allow us, 
we estimate, to start an additional 10 to 15 construction 
projects at Superfund sites nationwide. The second, a $10 
million increase over last year's record request for the 
Brownfields Program, brings our budget request to $210.7 
million for brownfields.
    Over the years both the Superfund and the Brownfields 
Program have demonstrated their value, not just in restoring 
the environment and protecting the health of America's 
families, but in revitalizing neighborhoods and communities in 
every part of our country.
    In addition to our traditional environmental mission, EPA 
plays an important role in homeland security. The President's 
budget request of $123 million for our homeland security 
efforts is incorporated in this budget. These funds will allow 
us to carry on the work that we have been doing to protect the 
Nation's water infrastructure and will give us resources to 
enhance our emergency response capabilities.
    Given our time constraints, Mr. Chairman, I would like to 
mention just two other areas that are fundamental to our 
mission, our ability to use the best available science, to 
which you have referred, and to enforce the law. The 
President's budget requests a total of $607 million to develop 
and apply strong science to address both current and future 
environmental challenges. It also adds $503 million, the 
largest ever requested for enforcement and a $21 million jump 
over our request last year. This will allow us to add an 
additional 100 FTEs to our enforcement efforts.
    Mr. Chairman, I am confident that our budget request fully 
funds and supports our obligation to be both good stewards of 
the Nation's environment and good stewards of the taxpayers' 
dollars. I would be happy to answer any questions that the 
committee might have now.
    Senator Inhofe. Thank you, Madam Administrator. You were 
just talking about the Brownfield funding. I had an amendment 
on there that increased the number of sites by 200,000 to 
include the petroleum sites, and I would assume, then, that 
that appears to be fully funded to be able to clean those up.
    Ms. Whitman. Yes, we are very receptive to that change, and 
the ability to include petroleum sites is going to enable us to 
address many more of these sites around the Nation.
    Senator Inhofe. We will do 5-minute rounds and just keep 
going. Others, I am sure, will show up, and if not, I know it 
will hurt your feelings if we have to end a little bit early.
    [Laughter.]
    Senator Jeffords talked about the Clear Skies Act. I just 
want to make sure that we get in the record that I don't agree 
with his comments there, because I believe that the Clear Skies 
Initiative is the largest proposed reduction in pollutants that 
any President, any Administration, has ever proposed. Would you 
agree with that?
    Ms. Whitman. I would, Senator, because this is a mandatory 
reduction. The beauty of having Congress do it is that, when 
Congress sets the standards, there isn't the same recourse in 
the courts. While the Clean Air Act has made enormous strides 
in cleaning up our air, we are finding now that we are starting 
to hit the point of diminishing returns. There is 
overregulation by the Agency, and we believe that marshaling 
the private sector through the cap-and-trade mechanism, as has 
proven so successful in the Acid Rain Program, will be just as 
successful in reducing these three most onerous of pollutants 
from power plants. The program is mandatory. It goes directly 
at those power plants which have continued to function under 
the current Clean Air Act and have caused such a problem for 
many of our States.
    Senator Inhofe. Some 70 percent reduction by 2018 or----
    Ms. Whitman. In 10 years. The beauty of it is, when 
Congress passes mandatory standards, as we saw under the Acid 
Rain Program, that the utilities begin to take action 
immediately because they know what the standards are. We are 
not telling them how to reach those standards, but they know 
what they are and they know the type of capital investment to 
make.
    The estimate is, and we are very confident of this because 
we know a great deal about utilities, that we will see a 35-
million-ton reduction of those three emissions over the next 10 
years beyond what we would get through current business as 
usual under the Clean Air Act. That is a 35-million-ton 
reduction, better than we will get just continuing down the 
path----
    Senator Inhofe. I think we need to keep saying that. Also, 
you briefly addressed the fact that this has been a successful 
story, but the more success you have, the more difficult it is 
going to be.
    I mean, since the middle seventies our reductions in 
pollutants has been about 29 percent, I believe, while we have 
had a population increase of 34 percent; we have driven, what, 
148 percent of the miles; the GDP has gone up 160 percent, but 
we reduced emissions, pollutants, by 29 percent. It is a 
successful story.
    I would also voice just a very friendly disagreement with 
something else that Senator Jeffords said having to do with the 
thousands of deaths. I am reminded a little bit of, Senator 
Jeffords, when we had Administrator Carol Browner and she 
talked about quantifying the number of deaths at that time--
this is the Ambient Air Amendments of 1996--as being 60,000 
premature deaths, and that was later downgraded to 40,000 and 
then 20,000. Then Dr. Kay Jones went in and did a study, and it 
ended up being closer to 1,000. I think it is easy to throw 
around a lot of thousands of figures, but I would caution all 
of us not to unnecessarily concern people, when perhaps it is 
not all that accurate.
    I want to in this first round address Tar Creek, and I am 
sure it will go into the next round, too. This has been a top 
priority, as I mentioned in my opening statement. It is 
something that has been involved in delays. Over a period of 
time we have spent, I believe, what, $100 million, over a 
period of time on it. There are some results there or some 
improvements. But I know that we are working on it now, and I 
would like to have you take a minute just to provide an update 
on what is going on specifically at Tar Creek, the Nation's 
worst site.
    Ms. Whitman. Certainly, Senator. Remediation of an 
additional 457 residential properties, 3 day care centers, and 
ten park properties started on November 20th of 2002. The cost 
to complete this phase of remediation is estimated to be at 
about $15 million.
    Residential cleanups, as you noted, have been under way 
since 1996. Almost 1,650 properties have been addressed. One 
hundred five Indian properties and eight school properties have 
been cleaned up, and that cost has been close to $45 million.
    Negotiations for an Administrative Order and Consent with 
the Department of the Interior, the Gold Fields Mining and Blue 
Team Mining to perform and finance the remaining issues before 
us on the non-residential portion of mining wastes is ongoing. 
So we are seeing significant progress at the site. We are 
addressing our attention to the human health risk, and we are 
remediating in the homes and the day care centers, where there 
is the maximum exposure, but we also recognize that we still 
have the commercial interests to deal with, and we are 
negotiating those.
    We expect that that part of it will take about 2 years to 
complete. Upon completion of that, the remedy for the non-
residential portion will be proposed.
    Senator Inhofe. When do you think we could expect the 
Administration's task force report?
    Ms. Whitman. We expect to have the residential sites 
cleaned and finished and be out of there in 2 years, and then 
we will take up the commercial. I'm not sure, do we know when 
we are going to see the report? [confers with her staff] That's 
in CEQ. I can't tell you when it will get out of CEQ.
    Senator Inhofe. The Tar Creek Task Force was to have a 
report. It is my understanding it was due, wasn't it?
    Ms. Whitman. It has been completed by the Agency and sent 
to the Council on Environmental Protection.
    Senator Inhofe. Very good.
    Senator Jeffords?
    Senator Jeffords. I guess referring to figures from the 
past is one thing, but let's look at the figures presently and 
what the bill would do. EPA released the Report on Children's 
Health Risk from the Environment. Among other things, the 
report contained the disturbing statistic that 8 percent, 5 
million, of the women of child-bearing age had high enough 
levels of mercury in their blood to have a high risk of adverse 
effects.
    As you know, I have introduced the Clean Power Act, which 
requires power plants to reduce mercury by 90 percent over the 
next 6 years. By contrast, the Clear Skies proposals we 
reviewed last year would actually increase mercury emissions as 
compared to full implementation of current law. In effect, no 
reduction of mercury would be called for under Clear Skies. In 
light of this study, surely the Administration realizes that 
such a proposal would be irresponsible.
    I understand the EPA is on the verge of finalizing its 
Clear Skies proposal for introduction as early as this week. I 
welcome that proposal. Perhaps EPA has made some revisions that 
I am not aware of, particularly in light of the Agency's 
release of this disturbing study.
    What revisions has the Agency made to Clear Skies to assure 
this disturbing problem of mercury contamination is resolved?
    Ms. Whitman. Well, Senator, we share the concern on 
mercury, as evidenced in the President's proposal. I would 
just, with all due respect, indicate that we are in the process 
of establishing a mercury standard. There is no standard now. 
There is no mercury MACT standard. That will not be completed 
until 2004 and not go into effect until 2007, under the Clean 
Air Act. We are moving forward as expeditiously as possible on 
that--we are not assuming that Clear Skies passes. It would not 
become mandatory until the year 2007, which is why we feel so 
strongly that by establishing a standard now that would require 
a 70 percent reduction, we would start to see the benefits 
immediately because that is what we saw when we introduced the 
Acid Rain Trading Program.
    There is no mercury MACT now, and we are continuing to move 
forward with that process, but the Clear Skies would give us a 
definitive number. If Clear Skies passes, it is in the 
utilities' best interest to make their capital investment all 
at once, and they would start making it now. So we would start 
seeing reductions in mercury, we believe, immediately upon the 
legislation being signed into law.
    Senator Jeffords. We just talked about mercury, but how 
many people are dying prematurely every year from power plant 
pollution now?
    Ms. Whitman. There are no studies, and the Study on 
Children's Health did not indicate the causal relationship. In 
fact, in mercury it was an emerging issue because we don't have 
the trends to indicate specifically that this is where it is 
coming from. We don't know the pathway in. Whether it is 
ingesting the fish and local consumption, we just don't know at 
this point. We need to get more information on that.
    Senator Jeffords. Leaving the mercury problem, what about 
the prematurity every year from power plant pollution?
    Ms. Whitman. We estimate that when Clear Skies is fully 
implemented over the next 10 years--that we will see a 
reduction of 12,000 fewer premature deaths than we will see 
under, again this is assuming that we get Clear Skies through, 
than we will under the current Clean Air Act.
    Senator Jeffords. It is my understanding that Clear Skies 
will increase the number relative to present law, if present 
law were put in place. Is that accurate or not?
    Ms. Whitman. That is not what any of our studies show, no. 
In fact, we would see a decrease of 12,000 premature deaths 
beyond which we would expect under the Clean Air Act from 
existing regulations. I believe it is 2 million fewer missed 
work days from bronchial and asthma attacks because of bad air 
quality causing asthma and bronchial attacks.
    Senator Jeffords. But wouldn't current law do better than 
that?
    Ms. Whitman. No, this is better than current law.
    Senator Jeffords. On global warming, do you believe in 
reducing greenhouse gas emissions will reduce the risk of 
economic and environmental damage from global warming and 
planet change?
    Ms. Whitman. The President has indicated his concern about 
the issue of global climate change and has set a target of an 
18 percent reduction. We are fully on board with that. We are 
supportive of it, and we believe that it is an issue that, 
while it needs more science, it still deserves to take action 
now. That is what the President has asked for.
    Senator Jeffords. Considering the record of the power 
plants, why should anyone in Congress or the public believe 
that voluntary measures are going to be adequate to reduce the 
greenhouse gas emissions at a time to avert global warming?
    Ms. Whitman. Well, I would tell you, Senator, and I can get 
you all the information, when the President announced his 
Greenhouse Gas Initiative, we at the same time announced a 
Global Climate Leaders Program. We had nine companies that were 
participants then. We are now up to 37.
    It is a voluntary program. These companies, ranging from 
General Motors to Alcoa Aluminum, come in to us. We have South 
Florida Power Company and Miller Brewing Company. These 
companies benchmark their greenhouse gas emissions, agree to 
targets well below business as usual, and then report to us on 
an annual basis on how they are going. Nine of those companies 
now have agreed to those standards, agreed to the program, and 
have established standards.
    Miller Brewing Company I believe is an 18 percent reduction 
per barrel produced by 2006. General Motors is doing it on an 
automotive, facility-wide basis. It is about a 10 percent 
reduction in greenhouse gases, again by 2006, below 2000 
levels. So we are seeing a real commitment.
    The Energy Star Program, again a voluntary program that we 
run, in 2001, the last year for which we have numbers, just by 
voluntary purchases by the public when they are informed of the 
benefits that can be had, saved the equivalent energy to fuel 
10 million homes, reduced carbon emissions the equivalent of 
removing 12 million cars from the road, and saved energy bills 
of $6 billion.
    These programs are working. Voluntary programs are 
significant. The benefits are measurable, and we believe that 
we can reach that 18 percent target that the President has 
established in the timeframe that he has called for.
    Senator Inhofe. Thank you, Senator Jeffords.
    If there is no objection, I will interrupt our questioning 
to give Senator Boxer time for an opening statement. Senator 
Boxer, we had opening statements of 5 minutes. You are 
recognized if you would like one.
    Senator Boxer. That is very kind of you. Thank you very 
much.
    Administrator Whitman, thank you for being here today. We 
are looking at EPA's 2004 proposed budget. We are looking at a 
number of other things, too.
    Since my schedule requires me to be at Foreign Relations in 
just a few minutes, and we have President Karzai from 
Afghanistan there, I would like to skip my statement and ask 
unanimous consent to place it into the record, and try to ask a 
couple of questions, if that is OK with you, Mr. Chairman.
    Senator Inhofe. Senator Murkowski, would it be all right if 
she asked her questions in advance of yours?
    Senator Murkowski. That is fine, but----
    Senator Inhofe. Oh, well, let's let Senator Murkowski----
    Senator Boxer. I was just going to say I will take my 5 
minutes that way.
    Senator Inhofe. All right, that is fine.

OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Boxer. I won't go over my 5 minutes. Thank you.
    I am very concerned on the mercury issue. I totally 
disagree with your statement that your so-called Clear Skies 
Initiative is going to get rid of more mercury than current 
law. If you read current law and you follow it, which your 
Administration hasn't done and doesn't seem to want to do, if 
you follow the letter of current law, you are going to see a 90 
percent decrease in mercury.
    I am going to submit to you a number of questions and 
comments written to me by scientists, and I am very interested 
in getting your written responses because we really don't have 
the time to go back and forth on ``No, it won't,'' ``Yes, it 
will.''
    So, respecting your answer, I, nonetheless, agree with 
Senator Jeffords completely on this, and I don't want to take a 
lot of my time, but I will be submitting to you some quotes 
from scientists for you to rebut, since you say that you are 
going to do a better job.
    What are the consequences of kids having mercury in their 
blood?
    Ms. Whitman. It leads to developmental disabilities. There 
are severe concerns about elevated mercury levels in the blood 
of pregnant women and in children because it is an inhibitor to 
growth and development and intellectual capacity.
    Senator Boxer. Exactly, and it really is something, Mr. 
Chairman, I would be so proud to work with you on. Just as we 
took the lead in the lead issue, regardless of our ideology, we 
have got to protect our kids from mercury. We may come up with 
different plans on how to do it, but I just want to say that I 
was distressed to see the Administration wait so long to 
release your report on Children and Environmental Risks. It 
finally came out. It was done in June, and then it finally came 
out 3 days after The Wall Street Journal had somebody leak--
somebody leaked it to them.
    Essentially, it says 4.9 million women of child-bearing age 
have elevated levels of mercury from eating contaminated fish, 
and approximately 320,000 newborns are at risk of neurological 
effects from being exposed in utero.
    So my question to you is, this is a terrible problem right 
now, and a lot of women of child-bearing age are unaware that 
certain fish carry the higher levels. Are you planning some 
type of campaign before we get into whether we are going to 
pass, which I hope we will, Senator Jeffords' bill, your bill, 
or another bill? What is EPA planning on doing to get this 
information out to women of child-bearing age.
    Ms. Whitman. Well, Senator, as you know, this is the first 
time that there has been a report on mercury. The first Report 
on Children's Health was really a compilation of available data 
and did not mention mercury at all. So we have included it for 
the first time. Right now we are working with our Federal 
partners to set up the next steps for further research. Mercury 
is an issue that we don't know what the pathway is. We don't 
know how those elevated levels are turning up, what type of 
fish ingestion, whether that it is the way that it is getting 
into the bloodstreams. We continue to work very closely, with 
States and tribes on how to go forward with fish advisories. 
There have been more fish advisories, and that was actually 
noted in the report. Much of that comes about because we have 
been working so closely with them to help them identify this as 
an issue.
    We will continue to be aggressive in those areas.
    Senator Boxer. I'm sorry to interrupt. It is just my time 
is going, and I know you will be aggressive, I hope you will be 
aggressive, but now you seem to say it is the first time the 
Federal--I am going to send you some of these studies done----
    Ms. Whitman. It is the first time in the Children's Health 
Report.
    Senator Boxer. No, no, in addition to it, that's right.
    Ms. Whitman. Yes.
    Senator Boxer. But other outside studies done by The 
International Journal of Obstetrics and Gynecology, other 
scientific studies, Mr. Chairman, say patients who had high 
fish diets or who were exhibiting symptoms of mercury exposure, 
including fatigue, headaches, joint pain, participated in these 
studies, and it doesn't seem to be much question but that this 
intake of fish--and there are certain fish that are named; I 
don't want to put them out here now because I really want to 
see you do that. But I guess my plea to you right now is to 
please, please move on this.
    Now what I said, when we got this study finally--it was 
sitting there since June. We have wasted precious time. There 
are women who have no idea, who are of child-bearing age, 
pregnant now, eating too much of this fish and getting too much 
mercury, and their kids will have problems or could well have 
problems. So, regardless of our arguments over the best way to 
reduce it, we have got to, it seems to me, wrap our arms around 
this one, regardless of party, and move forward.
    My last point, and I won't make it a question, is: I am 
very disturbed about our abandoning, the Administration 
abandoning, polluter-pays for cleaning up Superfund. We have 
seen these sites. We have seen them going from 87 sites a year 
cleaned to 40. It is an outrage. People in my State are 
completely disgusted that we have got the second largest number 
of Superfund sites. We want action. We want polluters to pay 
into a fund, so that taxpayers don't have to pick up 85 percent 
of the cost of this program, which is what your Administration 
is doing.
    Another time I will get to ask you some more questions.
    I thank you for your indulgence, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Boxer.
    Ms. Whitman. If I could, just on the presumption that the 
last had a question with it, just I want to assure you, 
Senator, that last year 71 percent of the cleanup was actually 
funded by the polluters. As you know, the average has been 70 
percent the polluter pays, and we believe that----
    Senator Boxer. You are using up the fund. There is hardly 
anything left.
    Ms. Whitman [continuing]. And we believe that, and those 
sites continue to be paid for and we continue to be focused on 
getting the polluter to pay.
    Senator Boxer. You are talking about lawsuits; I am talking 
about the Superfund itself. They are different.
    Senator Inhofe. Governor Whitman, I am going to be getting 
into that in my line of questioning. At this time I would like 
to recognize Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman.
    Since we have been discussing mercury so much this morning, 
and specifically as it relates to seafood and the amount of 
mercury in the environment there, we would like to think----
    Senator Inhofe. Excuse me. I think there is a problem with 
your mike.
    Senator Murkowski. As to seafood and mercury, in Alaska we 
don't seem to have, at least with certain of our fisheries we 
don't seem to have the levels of mercury that you might find 
perhaps on the Atlantic side.
    Unfortunately, it seems that the classifications or the 
groupings are just broad. Crab is crab, and you don't designate 
whether it is Maryland crab or whether it is crab from our 
clear, pristine waters. The same can be said for halibut. The 
halibut off Alaskan waters is different, and actually it is a 
completely different species than you have on the Atlantic side 
or the Greenland side.
    Unfortunately, our seafood seems to get lumped into the 
same kind of generic categories. If we are going to talk about 
the science behind it, we would like to think that there is a 
branding or a recognition that we don't just lump and 
categorize it all, because it certainly affects our ability to 
market our product.
    I am not asking for assistance in seafood marketing here, 
but just a recognition and an acceptance that, when we look to 
the science of it, that we do designate that there might be 
differences and that they should be treated accordingly.
    Ms. Whitman. Senator, that is a very important point as we 
move forward. That is why we work so closely with State and 
local tribes in the warnings, recognizing that in the locally 
caught fish there are differences. We need to be respectful of 
that.
    We also regulate the emissions of direct discharge of 
mercury into water. We have been encouraging industries to 
develop substitutes for mercury. We have seen a reduction of 
mercury by 90 percent from medical waste incineration and from 
municipal waste incineration.
    We are taking a number of steps to address the mercury 
issue, but we are very sensitive to the fact that there are 
differences in the waters; there are differences in the 
deposition of mercury around the country and in fish tissue as 
well. So we have to be careful as we move forward, and that is 
why we have, to date, have been working, we as an agency have 
been working, with the local States and tribes, where 
appropriate, to issue those advisories and make sure that those 
advisories are well-publicized where they need to be.
    But it is going to be the Centers for Disease Control, not 
the FDA, that will do the additional testing and make the final 
determination. [confers with her staff] It is FDA? OK, it is 
FDA that is going to be doing that. So they will be doing that 
part of it.
    We have an extensive research and development and 
assessment program to better understand how mercury behaves in 
the environment and in human health, and how to control the 
releases in the environment, all of which are part of a 
comprehensive approach to ensure that we have the science 
behind the concerns that we raise, and that when we raise them 
we are cognizant of the differences and don't just have a 
broad-brush stroke that captures everybody, when it is not 
appropriate to so do.
    Senator Murkowski. Since we are talking about seafood, I 
mentioned just very briefly in the opening that the seafood 
industry in Alaska is a key industry for us. We have had, as 
you know, some difficulties of late.
    One of the regulations that has come through your 
Department, of course, is the discharge from the fish waste, if 
you will. There is regulation coming out of EPA that requires 
grinding of the waste to less than one-half of an inch in any 
dimension. It is my understanding that this standard was 
adopted with very little science behind it, if you will, 
discussion, or actual study; that, in fact, reducing it to this 
small amount, this small standard, actually contributes to 
pollution problems. Well, reducing it that low may contribute 
to pollution problems because the waste deposits form such 
small particles that they don't receive the oxygen that they 
need to decompose.
    So, in other words, through the regulations, we are 
encouraging other problems that we did not anticipate. I would 
like to think that we could count on your support to conduct a 
new and objective study as to whether these requirements are 
really the appropriate standard for all cases, whether it does 
need to be reviewed and, if so, how we can address that 
problem.
    Ms. Whitman. I know our Administrator from Region 10, John 
Iani, has been working closely with representatives of the fish 
industry and others, and scientists as well, to try to address 
this issue. We have, as you know, a satellite office in Juno. 
Actually, it is not in Juno, but we have more people in Alaska, 
actually, than we have in the office, in the regional office in 
Washington State. They have been working very closely on this 
issue. We are aware of it, and we are trying to get to the 
science behind it in order to make the appropriate final 
decision on how to deal with this fish waste.
    Senator Murkowski. Thank you, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Murkowski.
    Let me get back to the discussion on the Superfund 
polluters-pay. You know, we hear this all the time. It is 
implying that somehow the Administration is letting off the 
hook those who are responsible for contamination at Superfund 
sites.
    I would just like to ask you, Governor Whitman, can you 
identify any Superfund site--past, present, or in the 
pipeline--where an identifiable and viable polluter has not 
been held liable, consistent with the law, for their share of 
contamination? Can you identify any?
    Ms. Whitman. No, Senator, I couldn't think of an instance 
where a viable, responsible party has not been held liable. 
There have been instances where we can identify a responsible 
party but the company has subsequently gone out of business, 
gone into bankruptcy, where we have had difficulty in 
recovering. But wherever we know the responsible party, that is 
our first line of defenses, our first line of funding for 
Superfund sites. Last year we stayed up at the level that has 
been consistent throughout the history of Superfund, the 70 
percent. We were actually a little bit higher at 71 percent, 
but that goes up and down from year to year. We are absolutely 
committed to the polluter-pays principle here.
    Senator Inhofe. I agree with that. I think we all need to 
keep saying it, because we keep hearing things to the contrary.
    I think also, and I would ask you this, it is kind of false 
to call the expired Superfund tax a tax on polluters, in that 
it taxes many people, many entities out there that are not 
polluters.
    Ms. Whitman. It was certainly a broad-based tax that 
captured everyone in the industry, whether they had, in fact, 
been responsible for specific pollution or not.
    Senator Inhofe. I would like to hear about the Agency's 
chemical securities initiatives. I have some real concerns that 
multiple government entities are pursuing the same goals, that 
it is confusing a lot of people. It is an overlap.
    I had personal experience in this in the real world, some 
26 agencies in my case all making certain demands, when in this 
Information Age we shouldn't have to do that. I think you know 
that we are going to introduce legislation which will ensure 
that our Nation's chemical infrastructure is secure while 
consolidating and streamlining these efforts.
    I would like to hear what your thoughts are on that.
    Ms. Whitman. Senator, I agree absolutely with the target of 
that legislation. I believe it should be streamlined in one 
place. Homeland Security we believe has the responsibility for 
that. We work with them to support them in any way that we can.
    Obviously, right after September 11, 2001, we worked with 
the chemical industry associations on vulnerability studies, 
the need for vulnerability studies, and we have continued to do 
that because we were the Agency that did that kind of thing and 
the only ones who were in a position to do it.
    But I agree with you that this should not be an area where 
you have overlapping jurisdictions. It is too important an 
area. We need to ensure the security of our chemical 
infrastructure, and if that is Homeland Security, if 
legislation passes that gives that to Homeland Security, I am 
more than happy to have that rest there with them and have them 
do it, but I think there should be one agency, one department, 
that has that responsibility.
    Senator Inhofe. Which is really the whole key to the 
Homeland Security, to consolidate these functions so that you 
are listening to one person, one department.
    Ms. Whitman. Believe me, I try to give things away. I would 
be happy to give this to them.
    [Laughter.]
    Senator Inhofe. My next question is a pretty long one, so I 
am going to yield to Senator Jeffords right now and then pursue 
that.
    Senator Jeffords. About the Superfund, to follow up on 
that, the EPA Inspector General has documented that there was a 
funding shortfall of over $200 million in the Superfund program 
last year. Seven sites identified as high priority by EPA, 
including Elizabeth Mine in Vermont, received no funds while 48 
others were underfunded.
    What is the EPA doing to ensure that the communities get 
the money they need to clean up these toxic sites?
    Ms. Whitman. Senator, we are in the process of doing a 
whole pipeline review of sites and how sites are brought on to 
the National Priority List. We are committed and continue. No 
work has stopped, no ongoing work has stopped on any site in 
the country. Where we have started work, we are continuing 
through with that work.
    What goes to the top of the list always is any indication 
that we get that a site is posing a threat to human health or 
the environment. If it is posing a health threat, we are going 
to get on that site one way or another, and we have continued 
to do that.
    We are seeing sites, obviously, that, as we talked about 
last year, that are larger and more complex than sites we have 
had to deal with in the past. That is part of the reason why 
the number of closures onsites, completions onsites, is not 
what we would like it to be, either. But we continue to move 
forward. We continue to respond to sites that are of immediate 
public or environmental health, and we continue construction 
and completion work onsites where we have begun work.
    Senator Jeffords. As I mentioned a few moments ago, over 
the course of the last year and a half the EPW Committee has 
sent a number of informational requests to EPA concerning its 
proposed rule changes to the New Source Review Program. By and 
large, the Agency's responses have been quite inadequate. In 
fact, EPA responded fully to only one of five questions 
submitted in a December of 2001 letter, and it has still not 
given us a thorough log of documents pertaining to the new NSR 
rules.
    Questions submitted prior to a July of 2002 hearing 
received cursory attention. Many questions were even refused, 
based upon claims of ambiguous pre-decisional criteria. 
Interestingly, I have received answers to my July post-hearing 
questions just last night.
    Also unanswered is the December 2002 letter seeking an 
estimate of the number of sources that will, under new rules, 
be excluded from review. I would like to ask you now, when does 
the EPA plan to respond in detail and in good faith to these 
questions? What can be done to ensure more timely responses in 
the future?
    Ms. Whitman. Senator, I understand that it has taken a 
significant amount of time for the Agency to respond to your 
New Source Review questions, and I apologize for that. As you 
know, there were two sets of questions, one pre-and one post-
hearing questions. We made the determination on the post ones 
to wait until we had the rule promulgated to be able to fully 
answer. I recognize that that has not been satisfactory to you.
    We did get a substantial number of those answers to you 
finally last night. There are 12 more which I will commit we 
will get to you in the next couple of weeks, and we are looking 
at the process. We need to do a better job. I can't deny that 
you deserve to have your questions answered sooner.
    I am not sure we will always agree on what is ``fully 
answered'' because of the types of information. You know, they 
are very technical questions, as you well know, very detailed 
questions. We try to give you the fullest answer possible, but 
we are working on that one.
    Senator Jeffords. As I mentioned in my opening remarks, I 
am concerned that the proposed budget would represent an almost 
40 percent cut in funding to the Clean Water State Revolving 
Loan Fund. I was one of 38 Members of Congress who sent a 
letter last December to the President asking him to make an 
investment in clean water infrastructure providing at least 
$3.2 billion for Clean Water SRF. Can you explain the rejection 
of this advice in the face of well-documented needs, and 
without a substantial increase in funds, how can we continue to 
maintain and improve our Nation's water quality?
    Ms. Whitman. Senator, as I indicated in my opening 
statement, this request does represent a cut in that fund 
account from last year's request, but, as we look at the 
revolving nature of the fund and the level of that revolving 
nature, we believe that taking it out to 2011, which is beyond 
what had been anticipated--I believe 2006 had been the initial 
date--and ensuring that it revolves at a level well above what 
was--again, not anticipating the legislation because there was 
nothing anticipated in the legislation.
    If you also look at some of the other ways to address the 
infrastructure challenges that we face, if you anticipate a 
real level of growth of 3 percent, there are some other actions 
that can be taken. We believe we can close that gap to an 
amount that is very manageable, but it is an area where we also 
think it is important to look at all the other dollars that we 
provide to our State and local partners to address water 
issues, not just that--that fund alone, that revolving fund 
alone, does not represent the totality of what the Federal 
Government provides to States and local governments to address 
water infrastructure needs.
    Senator Jeffords. My time is up, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Jeffords.
    Now for the longer question here: In October of 2000, I, 
along with JoAnn Emerson, Joe Knollenburg, and others, filed a 
lawsuit against the National Assessment on Climate Change for 
three principal reasons: First, the purported science was not 
subjected to peer review. Second, it did not even attempt to 
address a list of items that the relevant law mandated 
``shall'' be addressed for any document to qualify as a 
national assessment. In fact, it admits that in its 
introduction. Then, third, the Freedom of Information Act 
inquiries revealed intense political motivation for the report 
prior to the 2000 elections.
    Ultimately, we agreed to withdraw our complaint in return 
for the White House's guarantee in writing that the National 
Assessment does not reflect policy positions or official 
statements of the U.S. Government. Yet, somehow the EPA revived 
the National Assessment by submitting it to the United Nations 
as Chapter 6 of the Climate Action Report 2002 as a, quote, 
``policy position'' or an official statement of the U.S. 
Government.
    As you are quite aware, some State attorneys general have 
seized on this disavowed, yet somehow revived, document to 
claim that EPA must regulate carbon dioxide under the Clean Air 
Act.
    I guess my question would be, would the EPA cease 
dissemination of and withdraw the Climate Action Report because 
it plainly fails sound science and other requirements? It is a 
question, yes.
    Ms. Whitman. Senator, first of all, that Climate Report to 
which you refer was part of a report submitted to the United 
Nations under the U.N. framework that is required every 4 
years. It is an Administration-wide document. The Environmental 
Protection Agency simply collated and contributed to one 
chapter of that.
    But the important thing is that the assessment titled, 
``Climate Change Impacts,'' the one to which you refer, has not 
become U.S. Government policy, and it did not in this report. 
In fact, there are number of places in the report where it 
points out the fact that there are potential scenarios here. 
This was drawn on for that particular chapter as other things 
were drawn on, other documents and other research documents. It 
does not represent, though, the position of the Administration.
    Chapter 6 of the Climate Report, where this particular 
report to which you refer was cited, says in several places 
that the information presented there is potential scenario and 
does not necessarily represent the position of the U.S. 
Government, and the U.S. Government has not changed that 
position. But it is documented as research that is out there 
that was referred to as just one part of an overall assessment.
    Senator Inhofe. And I appreciate that, but the perception 
is that this is policy. I would ask you to do what you can do 
to clear this up.
    Now I understand your Mercury Advisory Group has made 
recommendations for reductions that range from 25 percent to 90 
percent. So Senator Boxer's 90 percent reduction claim from the 
current law may be too high. Would you have any comments to 
make about that?
    Ms. Whitman. We are, as I indicated to the Senator, in the 
process of developing the mercury standard under the maximum 
available control technology portion of the Clean Air Act. That 
standard has not yet been set. So it would be premature of me 
to indicate where it is. I don't know. There is not a standard 
yet for mercury.
    We recognize that mercury is an emission of great concern. 
That is why the President has put it in the Clear Skies 
legislation and has called for a 70 percent reduction. It is 
why we have worked so closely with the medical incineration 
industry and the municipal waste industry. We are also working 
to remove mercury from the lake streams at the front end. We 
are work with the health care industry and the chlorine 
industry specifically to try to get mercury out of their 
various products. So we are taking this issue very seriously, 
but as far as a standard, mercury standard, for emission from 
power plants, there is none yet.
    Senator Inhofe. Senator Jeffords?
    Senator Jeffords. Regarding the water infrastructure 
spending, EPA does not specify where the 3 percent real 
increase in spending should come from. Do you support an 
increase in rates? Do you support an increase in State 
spending? Do you support an increase in Federal spending?
    Ms. Whitman. There are a number of different ways that we 
believe we can address that infrastructure gap. In fact, 
Senator, as you may know, we had a conference of all the 
interested parties and stakeholders to address that. They came 
up with a number of different suggestions, best practices, 
asset management best practices. They have looked at more 
flexibility in the dollars that we provide. We are promoting 
the environmental management systems again that they have 
called for.
    So money is going to be one part of it, and what the 
consumer pays is going to be a decision left up to individual 
companies. As you know, we have real concerns about doing 
anything that will increase the cost of any basic service to 
the public. On the other hand, we recognize that there is no 
one entity that is going to be able to fund this need 
exclusively itself. The Federal Government is not going to be 
able to do it, and we are going to have to be more creative as 
we look at approaches that can address the needs that we see in 
providing clean and healthy water to the residents of this 
country.
    Senator Jeffords. During the 107th Congress, the Great 
Lakes and Lake Champlain Act of 2002 was enacted. This law 
authorizes $11 million per year for Fiscal Years 2004 through 
2008, and for EPA to support Lake Champlain Basins or to 
restore and protect Lake Champlain.
    Since 1990, the Basin Program has received $19 million. The 
action by the 107th Congress authorizes a new phase to the 
program. This new authorization appears to be completely 
ignored in the President's budget.
    Can you explain the fact of why the Agency budget contains 
an additional 15 for the Great Lakes and zero for Lake 
Champlain?
    Ms. Whitman. Senator, the Lake Champlain Basin Program is a 
very successful interagency and international partnership. We 
intend to continue to our support of that. Region 2 has been 
very involved in it. The budget is just over $1 million. 
Actually, Regions 1 and 2, both regions will continue their 
participation there.
    We believe that it is successful, and we believe that we 
are helping improve the status of the lake. Reducing phosphate 
loading is the biggest issue, and the next largest is the 
control of invasive species. We have focused on those issues--
we believe that it has worked very well.
    Funds for the Lake Champlain effort have been split in the 
past 3 years between the Great Lakes Basin Program, Great Lakes 
Champlain Basin Program, and the Rubenstein Environmental Lab 
at the University of Vermont, and the Lake Champlain Science 
Center. Together with leveraging of those dollars, we are 
seeing progress being made on that lake.
    Senator Jeffords. Is your Advance Notice of Proposed 
Rulemaking relative to the navigable waters limited to comments 
related to isolated, intrastate, non-navigable waters and 
whether regulations should define isolated waters?
    Ms. Whitman. We on that Advance Notice of Proposed 
Rulemaking have limited what we have asked for comment on to 
those issues that were raised by the Supreme Court. When the 
Supreme Court determined that the Agency could no longer use 
the Migratory Bird Act as a way to protect isolated waters, we 
have focused on that. That, obviously, changed the way we go 
forward with those protections. We are asking for comments on 
those issues. That is where our focus is.
    Senator Jeffords. I have before me a list of 60 point 
sources of discharge into Lake Champlain from Vermont and 
another 28 sources of discharge into the lake from New York. It 
is possible that some or all of these point sources could be 
excluded from the protection of the Clean Water Act if the 
Agency's rulemaking goes forward. Can you elaborate on which 
waters you will be evaluating to determine if the Clean Water 
Act should apply?
    Ms. Whitman. We don't have a rulemaking now. We have an 
Advance Notice of Proposed Rulemaking, and the reason for that, 
Senator, is because of the concerns that we have and the 
complications and the desire to try to figure out exactly what 
the Supreme Court was saying when they limited our ability to 
use what had been the standard method of getting at those 
waters.
    We can't just ignore the Supreme Court. They made a 
decision. They said the tool that we had used the most in 
reaching isolated waters was no longer the valid tool. We want 
to make sure that we can be as protective as possible of these 
isolated waters, and we are trying to get from people who 
comment on this Advance Notice of Proposed Rulemaking as much 
information as possible to allow us to continue to be 
protective.
    But at this point in time, since it is only an Advance 
Notice of Proposed Rulemaking, we don't have anything to 
indicate yet what we can do, but we have sent out a guidance to 
the field to try to encourage our regional offices to be as 
protective as possible.
    Senator Inhofe. We have been joined by Senator Carper, and 
we would like to ask him if he has an opening statement or if 
he would prefer just to question the witness.
    Senator Carper. I know these people have been waiting to 
hear my statement, Mr. Chairman, but I am going to disappoint 
them and ask unanimous consent that my statement be entered in 
the record and we will move right to the questions.
    Senator Inhofe. Without objection.
    Senator Carper. Thanks, Mr. Chairman.
    Governor, welcome. How are you?
    Ms. Whitman. Very good.

 OPENING STATEMENT OF HON. THOMAS R. CARPER, U.S. SENATOR FROM 
                     THE STATE OF DELAWARE

    Senator Carper. We are delighted that you are here. We have 
got Chairman Greenspan and a lot of our financial industry 
regulators over in the Banking Committee talking just about the 
deposit insurance changes. So I apologize for being delayed.
    I understand you have been talking a little bit about clean 
air in my absence, and I would like to explore some items 
there. But before I do, let me just ask, if I could, a 
budgetary issue, since I think that is the reason why you are 
here, to talk about your budget.
    In my State, and I know in your State, and perhaps in the 
States of my two colleagues, we have a problem with combined 
sewer overflows, and it is a real challenge, especially in a 
city like Wilmington that has been around for a while, and I am 
sure you have it in Trenton and New York and other places.
    We use State money. We use city money, the city of 
Wilmington's money, New Castle County funds from the northern 
part of our State. We use Federal moneys to try to address 
these combined sewer overflow needs that we have. There is not 
nearly enough money to meet the need. When I talk with other 
colleagues, especially from the Eastern Seaboard and from the 
Midwest and places where they have cities that have been around 
for 100 or 200 years, I hear repeatedly how this is a great 
need in their own communities.
    With that evidence as sort of the backdrop, my 
understanding is the budget that has been submitted to us, it 
includes funding to help our States with combined sewer 
overflow needs. But that money has actually diminished rather 
than enhanced, is that true?
    Ms. Whitman. The amount of money, the $850 million 
requested in this budget is less than last year's request, but 
we did two things. Well, one major thing is to carry that fund 
out, make a commitment to carry it out to 2011, which is beyond 
what was initially anticipated, 6 years beyond the original 
commitment that was made for the SRF.
    This would mean that the long-term level of the revolving 
nature of the fund would be at about $2.8 billion, which is a 
40 percent increase over what had been made, the commitment of 
the $2 billion made by the previous Administration.
    While we understand the challenges that we all face with 
these issues, we believe that this kind of commitment by the 
Federal Government represents a substantial portion of what is 
going to need to be done to address them, and we are going to 
have to work with the other stakeholders to try to close the 
gap.
    Senator Carper. All right. Just to put it in perspective, 
in the city of Wilmington, the estimate for meeting our 
combined sewer overflow needs is about from all sources $250 
million. It is roughly $250 million. The amount of money that I 
think you have mentioned, roughly $2.5 billion, that is what 
Delaware could use for one city, Wilmington. It is about one-
tenth of that entire amount forecast for the next 7 or 8 years.
    We are a tiny, little State, as you know, and our needs are 
dwarfed by those of bigger States like New Jersey or even 
bigger States like Vermont.
    We are not at all unprepared to spend our own money. We 
ought to. States ought to have to have some ``skin'' in this 
game, State moneys and local moneys as well. But I would just 
say for the record that, while I appreciate the points you 
made, it doesn't begin to meet the need that is out there.
    Let me also pick up the issue, if I could, of clean air. I 
understand there has been some discussion already. Riding down 
on the train today, I noticed in the newspaper there was some 
reference to I think it was the statement or views of the 
National Academy of Sciences with respect to their views on a 
10-year delay. It was just a little snippet in the paper, but 
my recollection is that they are saying that maybe we have 
delayed this enough and it is time to get on with addressing 
global warming and taking up seriously the carbon issues.
    I have had the privilege of discussing with you my own 
views. Senator Jeffords has, as you know, been a champion on 
this front in saying it is not enough to address sulfur oxide, 
nitrogen oxide, and mercury emissions, but we also need to 
address carbon as a concern for global warming and greenhouse 
gas.
    Senator Chafee and myself, and actually joined by Senator 
Baucus and Senator Breaux last fall introduced legislation that 
tries to find a middle ground between Senator Jeffords' 
approach and the Administration's approach, which I think 
Senator Inhofe is going to introduce the Clear Skies 
Initiative.
    We do say carbon is a problem and we do call for addressing 
it in a way not as aggressively as Senator Jeffords has 
proposed, but we do call for addressing it. We have a cap-and-
trade system that is in our legislation to try to harness 
market forces and we make some changes in resource review. We 
don't get rid of it, but we amend it, not end it.
    I very much would hope that as we go forward this year that 
Senator Inhofe and Senator Jeffords and you and those who 
support this centrist approach that we have tried to clear up 
will enter into a good dialog, and that maybe out of these 
different approaches we can find one that we can agree on that 
will actually make a difference in the quality of our lives.
    Mr. Chairman, 10 years ago I didn't put much in credence in 
this issue of global warming. I went to Ohio State as an 
undergraduate. A couple of nationally renown scientists, a 
husband and wife team, and I think their last name is Thompson, 
Dr. and Dr. Thompson, have done a fair amount of research 
around the world measuring the disappearance of snowcaps in 
some of the tallest mountains in the world over the last 20 
years.
    I have listened to them, talked with them, to hear what 
they have said. I have come from one who was pretty much a 
skeptic 10 years ago to the belief that this is an issue that 
we need to address. My hope is that we can come into it with 
good faith and manage to find a middle ground. But we need your 
help on this as well.
    Senator Inhofe. Thank you, Senator Carper.
    We are joined by two of our colleagues, and if it is all 
right, Senator Cornyn, we would defer to our ranking member 
here, Senator Warner, for any comments he wants to make.

OPENING STATEMENT OF HON. JOHN W. WARNER, U.S. SENATOR FROM THE 
                    COMMONWEALTH OF VIRGINIA

    Senator Warner. Thank you very much. I welcome the 
opportunity to see you again before this committee. I think you 
have discharged your responsibilities to the President and the 
Nation very commendably. I am delighted that you are going to, 
hopefully, continue in this position.
    Two subjects of great interest to me: First, the military 
implications of the ranges that we have, the training ranges 
and other operational areas with our military, and particularly 
at this time, Madam Administrator, when we are at an absolute 
peak OPTEMPO of training and preparing our people to take on 
some possibly extraordinary missions. They are taking them on 
now, but others are looming in the future.
    Somehow we have got to resolve how these ranges can be 
operated 24 hours a day, 365 days a year, and none of it is 
incompatible with the environment. I hope perhaps you did it by 
exception, maybe naming a range here and there. Because it has 
taken this Nation so long to put the body of environmental laws 
in place, I am reluctant to try to change them just to protect 
the military and its operation of bases.
    I don't have any specific plan at this time, but working 
with my colleague who, fortunately, also serves the Committee 
on the Armed Services, we will approach the President and the 
Administration with what we feel is a solution. Hopefully, the 
Department of Defense will either join or have a better idea. 
But we've got to move out on that, and we've got to move out 
swiftly because, otherwise, we are not being fair to these 
young men and women in uniform who have to go out and accept 
the risk of military service. So that is coming down the pike, 
so to speak.
    Do you have a comment on it?
    Ms. Whitman. I would be delighted to comment on it, 
Senator. We have been working very closely with the Department 
of Defense, and I don't believe that there is a training 
mission anywhere in the country that is being held up or not 
taking place because of an environmental protection regulation.
    I know there have been some concerns on endangered species, 
and not from EPA's perspective, but the Department of the 
Interior's perspective on invasive species. I know the 
Department of the Interior is working very closely with the 
Department of Defense also to ensure that they work out 
something that recognizes the need that we have to provide 
adequate training to the men and women in our Armed Forces, so 
that we never put them in jeopardy.
    I believe firmly that we can move forward in a way that is 
also protective of the environment. Where we will get into more 
of an involvement with the Department of Defense is the cleanup 
after they have used a range.
    We do need to be protective of the communities around. We 
need to be protective of the waterways and of the air, and we 
continue to work closely with them, and we believe that those 
protections are important protections. But at this point in 
time I am not aware of any particular area where environmental 
protection regulations are preventing desired training.
    Senator Warner. We will be interested in the functions of 
the oversight of Interior and the oversight of your 
Administration. So we will work in this area.
    Second, the reserve fleet or the ships anchored, 
particularly in my State and in one or two areas of the 
country, I really worked hard to get the $20 million. I hope 
that you will begin to contract that money out in this cycle. 
Others helped, of course, on it but this took a strong effort 
on behalf of the Virginia congressional delegation. I received 
strong help from my colleagues.
    Because these ships are at anchor. They are utterly useless 
for any purpose whatsoever, but they sit there as timebombs 
against the environment, should a natural disaster of a 
hurricane or something dislodge them from their moorings and 
crash them into the adjoining shores. You are aware of this.
    We are also mindful of the environmental laws that have 
been put in place by the Executive Order that we can no longer 
ship these ships overseas and just literally give them away, if 
someone will take them, and scrap them, because we feel that we 
shouldn't transport some of the environmental hazards that they 
have in their old hulls to other nations. That has been 
settled. It is settled policy. I know of no thought in this 
Administration to reverse that. Am I correct in that?
    Ms. Whitman. Well, Senator, we have been working very 
closely with the Maritime Administration and looking for 
appropriate disposal sites. In fact, there was a joint mission 
that went to Mexico to look at a potential agreement there. 
They are in Scotland this week.
    Senator Warner. China? I beg your pardon. China?
    Ms. Whitman. There is a potential visit to China as well.
    So we are working very closely with the Maritime 
Administration to find areas that would welcome the disposal of 
these ships and in an environmentally sensitive way for reefs 
or other purposes. As I say, I know there is one this week in 
Scotland. They have had one, the trip to Mexico. They have been 
meeting, and we anticipate going to China, but it has not been 
scheduled yet. They are in the process of scheduling that to 
visit the shipyards.
    Senator Warner. My staff advises me we lost Mexico when we 
couldn't make a decision. Are you familiar with that, what 
happened?
    Ms. Whitman. I don't at this point believe that anything 
has been actually ruled out. The Mexican Government officials 
expressed a strong interest in this program, and we are going 
to be following up with further contacts. So I am not aware. If 
there is something, a decision that they have taken recently, 
that indicates they are unable to accept the ships, we will 
certainly get to you.
    [Ms. Whitman confers with her staff.]
    OK, I am informed that in Mexico there was one company that 
we were working with that went ahead and made a contract with 
someone else, and so we are now looking for other companies in 
Mexico. But I don't understand it to be a governmentwide 
prohibition.
    Senator Warner. I am not here to fault the Administration.
    Ms. Whitman. No, no, no.
    Senator Warner. I am encouraged that you are reaching out 
because we simply have to address this problem. Congress faced 
up to it by finding the money in a tough time to locate those 
dollars.
    So I thank you very much. The $20 million that we've got, 
especially on this side with the help of our good friend, the 
chairman of the Appropriations Committee, has to be obligated 
this year. Are you aware of that?
    Ms. Whitman. Yes.
    Senator Warner. The other money from the Commerce, $11 
million, is the money which you can over a period of years 
obligate. But as long as you recognize fully the potential 
disaster----
    Ms. Whitman. I believe that money went to the Department of 
Defense, and they need to allocate it to the Maritime 
Administration for the scrapping of these ships. We are 
certainly working very closely with everyone to make sure that 
we carry out your desires.
    Senator Warner. That has been done. So it is clear to go.
    All right, you are in charge and you've got your money. 
Good luck.
    [Laughter.]
    Senator Inhofe. Thank you, Senator Warner. Senator Cornyn?

 OPENING STATEMENT OF HON. JOHN CORNYN, U.S. SENATOR FROM THE 
                         STATE OF TEXAS

    Senator Cornyn. Thank you, Mr. Chairman. I am sorry I was 
delayed a little bit. I was with Chairman Warner in an Armed 
Services briefing earlier, but I am glad to be here and glad to 
have a chance just to ask a couple of questions of 
Administrator Whitman, who has, I think we all know, a very 
challenging job.
    I, obviously, am new to this committee and the Senate, but 
strongly believe that having a sound economy and good job 
creation is not inconsistent with having common-sense 
environmental rules. But I do believe strongly that they need 
to be based on sound science and established technology. If we 
have certain goals that exist in our environmental laws, there 
ought to be a way for people in practice actually to accomplish 
that.
    So I wanted to ask really just two questions. One has to do 
with, and I understand that there has been some discussion of 
mercury and lignite, and forgive me if I am repeating a 
question that has already been asked. But lignite coal is of 
particular concern in my part of the country, in Texas, and the 
Clear Skies Act of 2002 would require lignite-fueled units to 
reduce mercury emissions by 40 percent in phase 1 and 69 
percent in phase 2.
    My question is simply this: Does the technology currently 
exist to accomplish this goal, in your opinion?
    Ms. Whitman. We believe that under the timeframe, having 
done the modeling that we have done and knowing as much as we 
do about the industries, the power industry in particular, that 
coal will continue to grow as a source of energy, as a base of 
energy. It will grow in the West as well as the East.
    The utilities will be able to reach these goals; they are 
achievable. The cap-and-trade approach that has worked so 
successfully in the Acid Rain Program, would allow utilities 
enough flexibility to reach these goals in a way that makes 
economic sense for them.
    Although I will hasten to add that the Clean Air Act 
standards do not go away in that we will not allow for 
increases in depositions. So that populations near and around 
these facilities do not have to fear that they are going to be 
at any kind of added health risk.
    Senator Cornyn. I certainly support the cap-and-trade 
approach and believe that is a reasonable way to approach it. 
But you are satisfied that the technology actually exists in 
order to accomplish these goals within----
    Ms. Whitman. We believe within this timeframe that the 
industry will be able to make these goals without forcing any 
kind of a shift in fuel away from coal or away from any current 
source of fossil fuel.
    Senator Cornyn. Forgive me for pressing the point, but my 
question really had to do with technology. Do you know whether 
the technology currently exists to accomplish that?
    Ms. Whitman. Some technologies do exist today to be able to 
get us there. Also part of the analysis is it will be a 
byproduct benefit of the technologies that we know exist to 
remove the SO2 and the nitrogen oxides.
    Senator Cornyn. The other question I had has to do with the 
voluntary reduction of greenhouse gas emissions. I know the 
President, of course, has set a goal of an 18 percent reduction 
by 2012. Some have advocated, contrary to the President's 
proposal of voluntary emissions reductions, a mandatory 
program. I am inclined certainly to support a voluntary program 
if, in fact, it will work.
    Could you comment briefly on the workability of a voluntary 
emissions reduction program?
    Ms. Whitman. Certainly, Senator. We held an event, 
actually, 2 weeks ago with the Departments of the Interior, 
Agriculture, Transportation, and Energy to highlight the 
various successes of the voluntary programs.
    To just talk about the ones that the Environmental 
Protection Agency oversees, our Energy Star Program, as I 
indicated before, is a voluntary, consumer-driven or focused 
program giving the consumer the information they need to make 
intelligent choices. In 2001 the program resulted in purchases 
that saved enough power to fuel 10 million home, reduced the 
carbon equivalent of 12 million cars, and saved energy costs of 
$6 billion.
    We have a new program called the Climate Leaders Program, 
which was announced at the same time that the President 
announced his new climate program. That started with nine 
companies that were involved. It is now up to 37. We have 
companies that range from General Motors to Miller Brewing 
Company, to Alcoa, and all the major industry sectors. Those 
that have set their targets--and there are nine of them that 
have set the targets--have set very aggressive goals for 
reducing their greenhouse gas emissions.
    As part of this program, they come to us. They agree to 
measure, to benchmark their greenhouse gas emissions, set 
targets for reductions that are well below business as usual, 
and then to report to us on an annual basis on how they are 
moving to achieve those. We are seeing some very real 
commitments by industry and are very pleased with what they 
have done and those that are coming forward.
    Senator Cornyn. Are you satisfied that, as part of this 
program, that there will be sufficient standardized reporting 
systems to prevent double counting and other such problems?
    Ms. Whitman. Part of the President's program that he 
announced called for an enhancement of the registry that exists 
over at the Department of Energy. We are working closely with 
the Department of Energy to establish that.
    One of the concerns we have, is that the registry has to be 
real. Companies have to be able to go in to show their 
greenhouse gas emissions in order to get credit, should there 
be any change in the future. That will be a very stringent 
requirement. The system will be such that we will be able to 
give credit for those that take early action, and yet not allow 
for a double counting, as we move forward to our targets and 
goals.
    Senator Cornyn. Thank you very much. Thank you, Mr. 
Chairman.
    Senator Inhofe. Thank you, Senator Cornyn.
    Let me just share a thought with you, in response to the 
question that was asked to you by Senator Warner. We are both 
very much interested in encroachment problems on our ranges, 
and you are right when you say it is mostly endangered species 
problems.
    In the case of Camp Pendleton, we are going to be down to 
about 30 percent use of the training area because of various 
endangered species. We are having the same problem in Camp 
Lejeune as well as Fort Bragg and many others. I could talk for 
a long time about that.
    It is critical because we are talking about American lives. 
But I think there are some areas that we might want to be 
looking at in your purview, which would be, for example, in the 
Vieques Range one of the problems we had there is the losses 
having to do with alleged health problems from the air, which 
caused or were possibly responsible for closing that live 
range.
    Then at the Adar range in Kuwait there were--and I am going 
from memory now--there were five deaths, four of whom were 
Americans, and the report shows clearly that it was because 
they did not have the proper training on the ranges. So this is 
a life-and-death issue that is not so much having to do with 
you, but it is one that we need to be looking at beyond just 
endangered species.
    I would only say to my good friend, Senator Carper, that I 
have enjoyed listening to this whole idea about global warming. 
In fact, I have found it can be kind of fascinating, going back 
to the 500-year period of the Little Ice Age, between 1350 and 
1850, and then going back the other direction, it started 
swinging back and going up through 1940 with actually a 
different trend; then in 1940 to 1970 having a trend that 
defies the argument that it is caused by CO2.
    Then, also, the two different ways there are of measuring 
the warming trend, if the warming trends are there, the most 
accurate one being not on the ground, but in the air. So it is 
something that we are all looking at. We find it to be 
interesting. We find that these trends have gone back and forth 
for many, many centuries, and I only wish we had some global 
warming in my State of Oklahoma right now.
    With that, I will defer to Senator Jeffords for the fourth 
round of questioning.
    Senator Jeffords. Senator Warner mentioned the DOD 
proposal, that there are certain instances for which a waiver 
for DOD would be appropriate. Aren't there exemptions already 
contained in current law such as the Superfund for national 
security purposes?
    Ms. Whitman. Yes, there are, Senator.
    Senator Jeffords. The Advance Notice of Proposed Rulemaking 
for EPA and the Corps explicitly asked for comment in section 5 
as to whether any revisions are needed to the existing 
regulations on which waters are jurisdictional under CWA. The 
presence of this request for information clearly expands the 
scope of your Advance Notice of Proposed Rulemaking to include 
all waters under CWA. Is this consistent with your answer to my 
first question related to the rulemaking then?
    Ms. Whitman. Yes, Senator, it is. We don't believe that we 
are expanding--in fact, we were very clear that we wanted to 
limit the scope of our response in any Proposed Rulemaking to 
the Supreme Court's decision. But, to be intellectually honest, 
we would take comments on anything. I mean, that is the way the 
comment period works. If comments come in on something, we 
respond to it.
    But our thrust here and our desire here is to determine how 
we can be as protective as possible of these isolated waters, 
recognizing that the main tool that we have used in the past is 
no longer available to us.
    Senator Inhofe. Senator Carper?
    Senator Carper. Thank you.
    I just want to follow up on Senator Cornyn's observation 
about I think the Administration's proposal to reduce, I think 
you said, CO2 emissions by what, voluntarily, by 18 
percent? Now my understanding, and correct me if I am wrong, 
Governor, but that is not an 18 percent reduction below current 
levels. That is an 18 percent reduction below what would 
otherwise be the case in the year 2012. So there is a fair 
amount of growth over the next 8 or 9 years, and this would be 
an 18 percent reduction in the growth?
    Ms. Whitman. That is correct, 18 percent in emissions 
growth.
    Senator Carper. I, for a number of years, lived on the 
other side of the river, and when Administrator Whitman was 
Governor of New Jersey, I was privileged to be Governor of 
Delaware. We shared a lot of common issues. Pollution that 
might have emitted from Delaware into the water or into the air 
could sometimes affect our friends that across the Delaware 
River in New Jersey.
    We have one refinery in Delaware called the Motiva 
Refinery. It is about ten miles south of the Delaware Memorial 
Bridge, and it is right on the Delaware River. Back in March of 
2001, EPA entered into a consent decree with Motiva Refinery in 
an effort to reduce the emissions of sulfur dioxide into the 
air. I am not sure how familiar you are with this particular 
issue, but it is one that has gotten a fair amount of attention 
in Delaware and, as it turns out, in New Jersey as of late.
    The consent decree provides for the use of technology to 
remove the emissions, but without increasing emissions into the 
Delaware River of sodium sulfate. There has been an effort by 
the folks who own the refinery, the Motiva people, to come back 
and to change the consent decree that so they would end up 
putting a fair amount of sodium sulfate into the Delaware, 
raising the salt levels, and also perhaps to include minor, but 
significant, other emissions into the river.
    So we have been having this back and forth between our 
Department of Natural Resources in Delaware and Motiva. EPA has 
been involved in this as well. It appears to us now that the 
people, the environmental regulators in Delaware said to 
Motiva, ``Live by the original consent decree. You've got to 
abide by that.'' My understanding is that EPA has said 
essentially the same. Yes?
    Ms. Whitman. Yes, we have agreed to that.
    Senator Carper. That decree holds. Good. Thank you for that 
assurance.
    My question is, do you have any idea if the proposed budget 
for EPA in Fiscal Year 2004 would allow the Agency to enforce 
the terms of the original consent decree with Motiva? I 
presume, based on your first comments, that you would certainly 
intend to enforce the original consent decree. But do you have 
any idea if you have the money, the financial wherewithal, to 
enforce it?
    Ms. Whitman. Yes, I am assured by our Enforcement Office, 
yes, an unequivocal yes.
    Senator Carper. Very good.
    Ms. Whitman. We are strong on polluter-pays here.
    Senator Carper. Good. Thank you.
    I think the question was asked before I got here--it may 
have been asked by Senator Jeffords--if you believe that 
increasing greenhouse gas emissions would increase the risk of 
global warming and climate change. I don't know how you 
responded to that. I was just wondering if you would mind 
sharing with me what you believe.
    Again, the question is, do you believe that increasing 
greenhouse gas emissions increases the risk of global warming 
and climate change? As I said earlier, 10 years ago I was not 
that convinced; I am today. I just would ask what your views 
are.
    Ms. Whitman. I believe that science shows us that there is 
certainly increasing concentration of greenhouse gases in the 
atmosphere and that is having an impact on the climate. I don't 
know that we know enough to know exactly which of our behaviors 
are the most egregious in impacting this, that we still have 
work to do, or as the most recent reports have shown, we know 
that we can look at science and it will tell us greenhouse 
gases concentrations in the atmosphere will cause, and can 
cause, changes, but how much of that is due to human behavior--
obviously, it is a part of it--and where those changes will 
occur are still things that need to be researched even further.
    But there is certainly a recognition that global climate 
change is an issue of importance. Otherwise, the Administration 
would not be putting as much money into research and into 
looking at the hybrid cars and the hydrogen fuel cell, as we 
are doing.
    Senator Carper. Thanks. Do you believe that increasing the 
greenhouse gas emissions increases risk? Do you have any views 
on that?
    Ms. Whitman. Risk to what?
    Senator Carper. The risk of global warming, the risk of 
climate change.
    Ms. Whitman. Science at this point would certainly tell us 
that there is a correlation between greenhouse gas 
concentrations in the atmosphere and climate change. Again, 
there was a recent report by NASA that indicated that land use, 
in fact, has as great an impact, or could potentially have as 
great an impact on global climate change as could emissions. 
Those are the kinds of questions that have real significance 
for our commitment and our investment of dollars and research, 
and that is why more needs to be done.
    But, certainly, I don't believe, nor does this 
Administration, that nothing is occurring. We do believe that 
there is an issue with climate change. We want to see more, but 
we also, and the President has made it very clear, and that is 
why we have our Climate Leaders Program, that is why the 
Administration has made the commitment to alternate 
technologies, renewable resources, and conservation that we 
would like to get through in the Energy Plan. We believe there 
are steps we can take now.
    Senator Carper. When I spoke earlier, I asked a question 
earlier, I mentioned that I had seen something in today's 
newspaper reported by, I think it is the National Academy of 
Sciences.
    Ms. Whitman. Academy of Sciences, yes.
    Senator Carper. But it was just a very, very short article. 
Did you----
    Ms. Whitman. What it was was that was a report that was 
requested. There is a working group putting together additional 
study parameters on the issues of global climate change. It is 
actually chaired by the Department of Commerce. We are a part 
of it, but it is an Administration-wide undertaking.
    In the course of that, the committee asked for a National 
Academy of Sciences review of what they were proposing as an 
agenda for additional research. It came back and had several 
very positive things to say about the commitment to the 
research and the need for additional research, and then it also 
outlined areas that they felt the research agenda, could be 
strengthened. It is my understanding that--and this is the way 
we address all these kinds of things--that those will certainly 
be factors taken into consideration before a final plan is put 
into place.
    Senator Carper. All right, thanks very much. Thank you, Mr. 
Chairman.
    Senator Inhofe. Thank you, Senator Carper.
    I just repeat--I guess I can do that now; it is my turn--
that it is interesting, when you look at the whole global 
warming idea, and I mentioned the Little Ice Age that we went 
through, and then we went through a cooling-off period that 
went all the way up to 1940, and then it started warming. You 
get just the opposite.
    A lot of people say, well, you have the greenhouse gases, 
you have CO2, and that provides an umbrella that 
holds it in, and then also that provides an umbrella that would 
allow it to actually get warmer. You could use the argument to 
make it warmer or cooler.
    In fact, logically, the CO2 increased most in 
about 1940, but it had just the opposite effect; it started a 
cooling-off period. So I don't know; it is something that we do 
need to study.
    I believe you have two more questions, Senator?
    Senator Jeffords. Almost one.
    Senator Inhofe. One? OK, you are recognized for ``almost 
one'' question.
    [Laughter.]
    Senator Jeffords. I understand correctly that there is 
about 12,000 or more people dying every year from power plant 
pollution and that the most adversely affected are the very 
young and the very old. I just wanted to know if you agreed 
with Mr. Graham over at OMB that the value of our lives 
declines as we get older, and should that be a factor?
    [Laughter.]
    Ms. Whitman. Senator, I would never make that kind of a 
statement.
    [Laughter.]
    Senator Jeffords. Thank you very much.
    [Laughter.]
    Senator Inhofe. All right, as usual, you are very 
straightforward, and I appreciate so much your tenacity and 
your willingness to respond to questions in a professional way.
    I only wish I were as eloquent as Senator Warner, so that I 
could compliment you.
    We are adjourned.
    [Whereupon, at 11:20 a.m., the committee was adjourned, to 
reconvene at the call of the Chair.
    [Additional statements submitted for the record follow:]
  Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
    Thank you Mr. Chairman for calling this hearing today. Thank you, 
Ms. Whitman, for your time today to discuss the President's budget for 
the EPA. I understand the challenges you face in allocating the EPA's 
scarce resources, and I look forward to continue working with you in a 
positive fashion, to protect the health and well being of the citizens 
of my State and the Nation, and to protect and enhance our environment.
    Over the years, EPA has done a good job of working in a positive 
and pro-active fashion with the people and communities in my State. 
Libby, Montana is an excellent example of this. Although we can 
probably all agree that EPA should have intervened in Libby far 
earlier, when your agency did act, it acted decisively in responding to 
the most immediate public health hazards posed by asbestos 
contamination. And, your agency has continued its commitment to Libby, 
as we look toward finishing the job and achieving a clean bill of 
health for the community.
    Obviously, I'll have some questions for you about maintaining 
momentum and focus in Libby on the clean-up process, and placing more 
emphasis on economic development and health care needs in Libby. But, I 
want you to understand how much I appreciate your personal commitment 
to the people of Libby.
    And, as I have always said, EPA's positive activities in Libby 
illustrate how very important the Superfund program is, in providing 
the resources, the authority and the expertise needed to address 
serious environmental and public health disasters--such as occurred in 
Libby--that are far beyond the ability of States and local communities 
to handle on their own. The Superfund program is not perfect, no 
program is perfect, but it is effective and it is working in Libby, 
Montana and across the Nation.
    Although Libby stands out because people have died and are dying as 
a result of massive asbestos contamination there, Libby is certainly 
not our only Superfund site and it's not the only area of our State 
where EPA plays a prominent and important role. Indeed, we have the 
largest Superfund site in the Nation in the Clark Fort basin, in 
addition to the many other sites scattered across our State.
    So, I share many of colleagues' concerns about the long-term 
viability of the Superfund program. And, although I don't doubt that 
you and the Administration are committed to recovering as much of the 
cost of cleanup from responsible parties, we all know that those 
efforts will never be sufficient to cover the total costs of cleaning 
up many of these heavily contaminated sites. The recent EPA settlement 
with ASARCO is a prime example, and I will have a more specific 
question for you about that issue. But, in general, I'd like to explore 
with you how the Administration plans to ensure the Superfund program 
is funded adequately in the foreseeable future, and how we can reduce 
the overall burden on the American taxpayer, rather than increase that 
burden, which is the direction we seem to be headed in.
    I would also like to add my concerns about the Administration's 
proposed reductions in the Clean Water State Revolving Loan Fund. It's 
bad enough that you propose flat funding for the State Drinking Water 
Revolving Loan Fund. But, I know you are well aware of the incredible 
water and wastewater funding backlogs facing State and local 
communities as they simply try to maintain their systems, let alone 
update and upgrade them to comply with new mandates.
    Rural Montana alone has huge infrastructure needs--I've been told 
that the Montana League of Cities and Towns has estimated repair and 
replacement costs of around $8 billion to keep these systems going. The 
Montana Department of Environmental Quality has estimates of 
infrastructure improvement needs of $1.4 billion, but the Agency 
believes that figure only represents a part of the picture. To put 
these figures in contrast C you have proposed just $850 million for the 
Clean Water SRF and $850 million for the Safe Drinking Water SRF.
    Also, new EPA and State mandates are creating a variety of 
financial and technical problems particularly for small and rural 
systems, including a lack of tested models for meeting these new 
standards. The burden is on the water districts to comply with these 
new mandates, even though, after 4 years of drought, many of these 
systems do not have the resources to implement necessary changes as 
well as pay for ongoing operation and maintenance. Also, as you know, 
it is much more difficult for small systems in general to finance 
multi-million dollar improvements to their systems, because they have 
so few rate-payers to share in the cost.
    Additionally, small systems under 10,000 will receive no money in 
the Administration's fiscal year 2004 Budget to do required 
vulnerability assessments. There are 35 to 39 systems of that size in 
Montana that will need to perform this assessment.
    I'd like to explore in more detail with you how we can help these 
small and rural communities deal with these enormous costs and 
burdens--we have to work with them to find real, workable solutions to 
the challenges of providing clean and safe drinking water and 
protecting the environment, and doing it in a manner that these 
communities can afford.
    In sum, Ms. Whitman, I want to make sure that my State continues to 
have a positive relationship and partnership with EPA. I look forward 
to working with you over the next year.
    Thank you Mr. Chairman.
                               __________
   Statement of Governor Christine Todd Whitman, Administrator, U.S. 
                    Environmental Protection Agency
    Mr. Chairman and members of the committee, I am pleased to be here 
to discuss President Bush's Fiscal Year (FY) 2004 budget request for 
the Environmental Protection Agency (EPA). The President's fiscal year 
2004 budget request of $7.6 billion provides funding necessary for the 
Agency to carry out our mission efficiently and effectively to protect 
human health and safeguard the natural environment. Given the competing 
priorities for Federal funding this year, namely the War on Terrorism 
and Homeland Security, I am pleased by the President's commitment to 
human health and environmental protection.
    I would like to begin, Mr. Chairman, by emphasizing that the 
President's budget request for EPA reflects the Agency's commitment to 
cleaning, purifying, and protecting America's air, water, and land. The 
request promotes EPA's goals in a manner consistent with fiscal 
responsibility by strengthening our base environmental programs, 
fostering stronger partnerships, and enhancing strong science.
    This Agency remains committed to working with States, tribes, and 
other entities to protect human health and the environment. Of the $7.6 
billion budget, $3.1 billion would provide direct assistance to States, 
tribes, universities, local governments, and other partners. The 
President and I both believe that these partnerships are a vital part 
of effective environmental management and stewardship. Our budget 
request reflects that.
    As EPA continues to carry out its mission, I look forward to 
building upon a strong base of environmental progress. This budget, Mr. 
Chairman, will enable us to carry out our principal objectives while 
allowing us to react and adapt to challenges as they arise.
Cleaner Air
    The budget requests $617 million to fund our clean air programs, 
thereby helping to ensure that air in every American community will be 
clean and safe to breathe. This includes $7.7 million more for modeling 
and analysis to strengthen the Agency's clean air programs. 
Furthermore, this budget supports the President's Clear Skies 
initiative, an aggressive plan to cut power plant emissions by 70 
percent. Clear Skies legislation would slash emissions of three power 
plant pollutants--nitrogen oxide, sulfur dioxide, and mercury-by 35 
million tons over and above what would be obtained under current law. 
Such emissions cuts are an essential component of improving air quality 
and thus environmental and human health. The Clear Skies initiative 
would buildupon the 1990 Clean Air Act's acid rain program by expanding 
this proven, innovative market-based approach to clean air. Many 
counties could be brought into attainment with new ozone and 
particulate matter air quality standards based solely on Clear Skies. 
Clear Skies would significantly improve air quality conditions even in 
counties that would require additional emission reductions. Such a 
program, coupled with appropriate measures to address local concerns, 
would provide significant health benefits even as energy supplies are 
increased to meet growing demand and electricity rates remain stable. I 
look forward to working with you, your fellow Members of Congress, and 
the President on this landmark legislation.
    The budget also includes $16.5 million for air toxics monitoring 
grants to State, Tribal, and local entities, a $7 million increase from 
last year, aimed at improving our understanding of air toxics exposures 
to help implement EPA's comprehensive air toxics strategy. The budget 
dedicates $23.9 million, an increase of $3 million, to the Agency's 
efforts combating children's asthma. The successful Tools for Schools 
Program, which helps schools assess and improve the quality of air 
students breathe, and other such efforts will benefit from the added 
funding.
Purer Water
    EPA's budget request places a strong emphasis on core water 
programs to improve our water management framework, program 
implementation, and information sharing. The President's request boosts 
resources to States, tribes, and various entities to provide technical 
assistance, guidance, training, and additional funding. Our core water 
programs will increase by $55 million for a total of $470 million. This 
includes $20 million for Clean Water Section 106 Grants to help States 
improve implementation of the Clean Water Act (CWA) and $12 million 
aimed at enhancing State and Tribal drinking water program capacity 
through Public Water System Supervision (PWSS) grants. Other efforts 
reflected in the budget to provide clean and safe water to the American 
public include:
      Additional Great Lakes Funding. This budget nearly 
doubles the Agency's Great Lakes commitment. EPA is requesting $15 
million in support of the Great Lakes Legacy Act to bolster 
contaminated sediment cleanup activities. In 2004 the Agency plans to 
begin cleanup on two to three new sites. Some of this funding will also 
be used for assessment and analysis, resulting in additional cleanups.
      Extending the Federal Commitment to the Clean Water State 
Revolving Fund (SRF). The President's budget is committed to funding 
the Clean Water SRF well above the previous Administration's $2 billion 
average annual revolving goal. It finances the Clean Water SRF at $850 
million through 2011 and increases the long-term revolving level by 
$800 million to $2.8 billion, a 40 percent increase over our previous 
goal. At present, there is $42 billion on loan or available for loans 
to States and tribes. The expanded commitment is projected to make $63 
billion available over 20 years thus allowing States and tribes to 
finance an additional 15,000 projects over that period.
      Extending the Federal Commitment to the Drinking Water 
SRF. EPA also proposes to fund the Drinking Water SRF at $850 million 
through 2018 so it can revolve at $1.2 billion per year, an increase of 
140 percent above and beyond our prior goal of $500 million.
      Protecting Wetlands. Due to a 2001 Supreme Court 
decision, tens of thousands of acres of isolated waters and wetlands 
may be subject to development that no longer requires a permit under 
the CWA. EPA's budget provides a $5 million increase for State and 
Tribal wetland protection grants to help them protect these waters and 
move the United States closer to no net loss of wetlands.
      Helping States Address Nonpoint Source Pollution. The 
President's budget allows EPA to work closely with State water quality 
agencies, USDA, conservation districts, and others to accelerate 
national efforts to reduce nonpoint source pollution. In light of 
significant increases in Farm Bill resources, EPA will shift the 
program's emphasis in agricultural watersheds from implementation of 
pollution reduction projects to planning, monitoring, and assisting in 
the coordination and implementation of watershed-based plans in 
impaired and threatened waters.
      Safer Drinking Water in Puerto Rico. To ensure public 
health protection, the Agency requests $8 million to design necessary 
infrastructure improvements to Metropolitano, Puerto Rico. When these 
infrastructure improvements are completed, EPA estimates that about 1.4 
million more people will have access to safer and cleaner drinking 
water.
Better Protected Land
    To immediately reduce potential human health and environmental 
threats, this budget continues our long-standing commitment to clean up 
contaminated sites. Superfund, funded at $1.39 billion, includes a $150 
million increase over the President's fiscal year 2003 budget request 
to start an additional 10-15 construction projects at Superfund sites 
nationwide. By strengthening Superfund, one of our base programs, this 
budget will continue the progress we have made in completing cleanups 
at more than 800 National Priority List (NPL) sites. Cleanup has either 
begun or been completed at over 93 percent of Superfund NPL sites.
    EPA is committed to building and enhancing effective partnerships 
that allow us to safeguard and restore land across America. To do so, 
this budget provides $210.7 million, $10 million above last year's 
funding request, for the Brownfields program, one of the 
Administration's top environmental priorities. The Brownfields program 
will draw on these additional resources to enhance State and Tribal 
response programs that restore and reclaim contaminated sites. By 
protecting land and revitalizing contaminated sites throughout the 
United States, EPA continues to expand efforts to foster healthy and 
economically sustainable communities and attract new investments to 
rejuvenated areas.
Homeland Security
    EPA plays a vital role in preparing for and responding to terrorist 
or other intentional incidents because of our unique expertise and 
experience in emergency preparedness and response to hazardous material 
releases. To meet our obligation to protect America's homeland we are 
asking for $123 million and 142 FTEs. This request would allow the 
Agency to continue providing leadership and guidance for the protection 
of the nation's critical water infrastructure while upgrading and 
enhancing our emergency response capabilities.
    The President's budget reflects EPA's role in protecting public 
health and critical water infrastructure in the event of terrorist or 
other intentional acts. To ensure the safety and integrity of America's 
water infrastructure, resources would be dedicated to working with 
States, tribes, drinking water and wastewater utilities, and other 
entities to assess the security of these water facilities and develop 
emergency response plans where appropriate.
    Incorporated in this request are targeted investments to strengthen 
the Agency's readiness and response capabilities, including the 
establishment of a ``decontamination team,'' state-of-the-art 
equipment, and highly specialized training for On Scene Coordinators 
(OCSs). Meanwhile, EPA will conduct research and provide guidance and 
technical support for Federal, state, and local governments, and other 
institutions in the areas of building contamination (chemical and 
biological) prevention, treatment and cleanup activities, water 
security, and rapid risk assessment.
    This budget would also expand our radiological contamination 
detection ability across the country and enhance our capacity to 
provide near real-time biosurveillance information should a biological 
incident occur. In addition, this request provides resources for 
Antimicrobials Scientific Assessments, Acute Exposure Guideline Levels, 
IT management for vulnerability assessments, environmental crimes 
expertise, as well as resources to enhance the Agency's physical 
infrastructure security.
Enhancing Strong Science
    Sound science is a fundamental component of EPA's work. The Agency 
has long relied upon science and technology to help discern and 
evaluate potential threats to human health and the natural environment. 
Much of our decisionmaking, policy, and regulatory successes stem from 
reliance on quality scientific research aimed at achieving our 
environmental goals. The budget request supports EPA's efforts to 
further strengthen the role of science in decisionmaking by using the 
best available sound scientific information and analyses to help direct 
policy and establish priorities. We have requested $607 million to 
develop and apply strong science to address both current and future 
environmental challenges. Our budget supports a balanced research and 
development program designed to address Administration and Agency 
priorities and meet the challenges of the Clean Air Act (CAA), Safe 
Drinking Water Act (SDWA), Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA), Food Quality Protection Act (FQPA), and other 
environmental statues.
    This budget supports increases to funding for research of sensitive 
populations such as children and the elderly, our new Aging Initiative, 
programs such as Computational Toxicology research, which integrates 
modern computing with advances in genomics to help develop alternatives 
to traditional animal testing approaches, and the Agency's Integrated 
Risk Information System (IRIS). We propose to nearly quadruple our 
funding for the modernization and expansion of IRIS-an EPA data base of 
Agency consensus human health information on environmental 
contaminants.
    Additionally, the Agency is taking steps to ensure a high quality 
scientific work force. To do so, we are requesting resources for the 
Science Advisory Board (SAB), the newly established Science Advisor, 
and the STAR Fellowship program. EPA will expand its support for the 
SAB, an independent council to Congress and the Administrator on 
scientific, engineering, and economic issues that underpin EPA 
policies. Like the SAB, the Science Advisor will be responsible for 
ensuring the availability and use of the best science to support Agency 
policies and decisions and advise the Administrator. To help us educate 
new environmental scientists we have requested $5 million for the STAR 
Fellowship program. This grant program has funded some of the country's 
best scientists and engineers. In addition, we have asked to expand our 
post-doc initiative which has encouraged environmental scientists and 
engineers to join EPA.
Enforcement
    Since EPA's inception nearly 30 years ago, many environmental 
improvements in our country can be attributed to a strong set of 
environmental laws and our efforts to ensure enforcement of those laws. 
State, Tribal, and local governments bear much of that responsibility. 
EPA partners with those governments and other Federal agencies to 
promote environmental protection and restoration. This budget requests 
$503 million, the largest amount ever and a $21 million increase over 
last year's request, for EPA's environmental enforcement program. These 
additional funds, coupled with our proposed 100 Full Time Equivalent 
(FTE) enlargement of the Federal enforcement work force, would help the 
Agency maximize compliance and achieve environmental results through an 
integrated program of assistance and compliance assurance.
Quality Environmental Information
    Information gathering, processing, and delivering are fundamental 
to EPA's work because of our reliance on scientific and analytical data 
and our close collaboration with external partners. Our goal is to 
provide the right information, at the right time, in the right format, 
to the right people. To achieve this goal, improve the Agency's 
information infrastructure, ensure that the American public has easy 
access to environmental information, and expand E-Government in support 
of the President's Management Agenda (PMA), we have proposed an 
additional $30.5 million investment for a total investment of $202 
million in EPA's Environmental Information office.
    We will continue development of the National Environmental 
Information Exchange Network. The Exchange Network is an electronic 
method of sharing environmental data using secure points of exchange. 
The primary components of the Exchange Network are the National 
Environmental Information Exchange Network Grant Program and the 
Central Data Exchange (CDX). The grant program assists States and 
tribes in evaluating their readiness to participate in the Exchange 
Network, enhances their efforts to complete necessary changes to their 
information management systems to facilitate Network participation, and 
supports State information integration efforts. The CDX is the focal 
point for securely receiving, translating, and forwarding data to EPA's 
systems-the electronic reporting gateway to the Agency's information 
network. This year the CDX will service 46 States and at least 2,000 
private and local government entities.
Ensuring Safe Food
    The President's request includes $119.0 million to help ensure that 
all Americans will continue to enjoy one of the safest and most 
affordable food supplies in the world. To do so, EPA will continue 
implementation of the Food Quality Protection Act (FQPA) which focuses 
on new science-driven policies for pesticides review, seeks to 
encourage the development of reduced risk pesticides that provide 
alternatives to older versions, and develop and deliver information on 
alternative pesticides/techniques and the best pest control practices 
to pesticide users. The Agency is also working to help farmers 
transition, without disrupting production, to safer pesticide 
substitutes and alternative farming practices. We will reassess 
existing tolerances to ensure food safety, especially for infants and 
children, and ensure that all registered pesticides meet current health 
standards.
A Commitment to Reform and Results
    The President's proposed EPA budget for fiscal year 2004 fully 
supports the Agency's work. The request demonstrates EPA's commitment 
to our principal objectives-safeguarding and restoring America's air, 
water, and land resources-by strengthening and refining our base 
environmental programs, fostering stronger partnerships, and enhancing 
strong science. As we look to the future, I am confident that this 
funding will ensure the Agency's fulfillment of our responsibilities to 
the American public.
    With that, Mr. Chairman and members of the committee, my prepared 
statement is concluded. I would be pleased to answer any questions you 
may have.
                                 ______
                                 
    Responses of Administrator Christine Todd Whitman to Additional 
                     Questions from Senator Inhofe
Tar Creek Superfund Site
    Question 1. The Tar Creek Superfund cleanup is a top priority for 
me. There are a number of Federal agencies involved, and EPA is a key 
agency. As chairman of this committee, I intend to do all in my power 
to make this cleanup work. Would you please provide an update of what's 
happening at this site?
    Response. For many years, EPA has undertaken actions to protect 
public health and the environment in Ottawa County. Certain problems at 
and near this site cannot be addressed by EPA alone. A multi-Agency 
response is required. Toward that end, one key activity is a Memorandum 
of Understanding (MOU) between EPA, the U.S. Department of Interior and 
the U.S. Department of the Army. The MOU was signed on May 1, 2003. The 
MOU will facilitate cooperation among the signatories to work toward a 
coordinated response. Some other current EPA led or funded activities 
include:

      A water quality study by Oklahoma Department of 
Environmental Quality, on Tar Creek, Beaver Creek, the Neosho River, 
and Spring River.
      Excavation of lead contaminated residential soils. To 
date approximately 1,647 residential properties and eight school 
properties have been cleaned up and 457 residential properties, 3 
daycare centers, and ten parks are being addressed.
      EPA is leading negotiations with potentially responsible 
parties, including the U.S. Department of Interior, to conduct a 
Remedial Investigation and Feasibility Study to address chat piles and 
tailing ponds.
      Evaluation of whether it is possible to reclaim and 
revegetate the mine-scarred land using various revegetation techniques.
      A study to determine the percentage of lead contaminated 
chat that can be safely used in surface asphalt and in courses base 
asphalt for paving.
      EPA funded the Quapaw Tribes to monitor the impact of 
wind-borne chat pile dust on homes located near the chat.
Superfund
    Question 2a. There has been a lot of rhetoric about making the 
polluters pay for Superfund cleanups, implying that somehow this 
Administration is letting off the hook those who are responsible for 
contamination at Superfund sites. Can you identify ANY Superfund site 
past, present, or in the pipeline where an identifiable and viable 
polluter has not been held liable, consistent with the law, for their 
share of contamination?
    Response. Since 1989, EPA has managed the Superfund Program 
according to the principle of ``enforcement first'' to secure a cleanup 
by responsible parties at sites where there is a viable and liable 
responsible party. Responsible parties cleanup approximately 70 percent 
of the remedial actions. In addition to securing ``PRP-lead cleanups,'' 
EPA recovers the tax dollars it spends while cleaning up Superfund 
sites. Since the inception of the Superfund Program in 1981 through 
September 30, 2002, EPA has recovered over $3 billion that may be used 
by EPA to perform future cleanups when appropriated by Congress. The 
Agency assures the committee that EPA seeks to maximize the 
contribution of PRPs to site cleanup.

    Question 2b. Isn't it also false to call the expired Superfund tax 
``a tax on polluters''--as it taxed many employers that have never 
caused contamination at any Superfund site?
    Response. Yes. The Superfund taxes consisted of excise taxes on oil 
and certain hazardous chemical substances and a corporate environmental 
tax levied on a company's alternative minimum taxable income. It is 
true that all entities paid the tax without regard to their causing any 
contamination at Superfund sites.

    Question 2c. Finally, is there any relation between the balance in 
the Superfund and the amount of dollars dedicated to cleaning up 
Superfund sites or the pace of cleanups?
    Response. There is no relationship between the balance in the 
Superfund Trust Fund and the amount of dollars dedicated to cleaning up 
Superfund sites or the pace of cleanups. Superfund cleanup dollars are 
appropriated from both the general fund and the trust fund at the 
discretion of Congress. The Superfund program continues to provide 
significant results throughout the country even though the sites now 
left on the NPL are larger and more difficult to clean up. In fiscal 
year 2003, the program is expected to keep pace with the fiscal year 
2002 remedial action level. I am pleased to report that the President's 
Budget for fiscal year 2004 includes a $150 million increase for 
Superfund remedial action activities, which represents a 65 percent 
increase over the fiscal year 2003 appropriation.
National Assessment on Climate Change
    Question 3. In October 2000, I, Representatives JoAnn Emerson and 
Joe Knollenberg and others, filed a lawsuit against the National 
Assessment on Climate Change.
    Ultimately, we agreed to withdraw our compliant in return for the 
White House guaranteeing in writing that the National Assessment does 
``not [reflect] policy positions or official statements of the U.S. 
Government.''
    Yet somehow EPA ``revived'' the National Assessment by submitting 
it to the United Nations, pursuant to Articles 4.2 and 12 of the United 
Nations Framework Convention on Climate Change, as Chapter 6 of the 
``Climate Action Report 2002,'' as a ``policy position or official 
statements of the U.S. Government.''
    As you are quite aware, some State attorneys general have seized on 
this disavowed, yet somehow ``revived'', document to claim that EPA 
must regulate carbon dioxide under the Clean Air Act.
    Will EPA cease dissemination of and withdraw the Climate Action 
Report because it so plainly fails statutory requirements? Please 
address:

    A. The incomplete status of the Climate Action Report, including 
the unfinished, though mandatory, peer review of sectoral analyses, 
under the eight requirements of the United States Global Change 
Research Act of 1990 as well as Public Law 106-74 which states, ``None 
of the funds made available in this Act may be used to publish of issue 
an assessment required under section 106 of the Global Change Research 
Act of 1990 unless (1) the supporting research has been subjected to 
peer review and, and if not otherwise publicly available, posted 
electronically for public comment prior to use in the assessment; and 
(2) the draft assessment has been published in the Federal Register for 
a 60 day public comment period;
    B. The Federal Advisory Committee Act.

    Response. This question refers to two separate reports: the 
National Assessment and the Climate Action Report. The two reports both 
deal with climate change but were developed for different purposes and 
by different groups. The National Assessment was produced by an 
independent Federal Advisory Committee Act, 5 U.S.C. App., (FACA) 
committee. The National Science Foundation (NSF) chartered the advisory 
committee that produced the National Assessment.
    The Climate Action Report 2002 (CAR) is a State Department 
document. The CAR is the U.S. Third National Communication that was 
prepared and submitted by the United States pursuant to its obligations 
under the U.N. Framework Convention on Climate Change (UNFCCC). Since 
the UNFCCC was ratified by the United States in 1992, the State 
Department has been responsible for developing and submitting each of 
the U.S. National Communications under the UNFCCC (i.e., in 1994, 1997, 
and 2002).
    In 2002, as in previous years, the State Department convened an 
interagency team to draft the document. This team included staff from 
the Office of Management and Budget, Council on Environmental Quality, 
Environmental Protection Agency, the Departments of State, Energy, 
Interior, Commerce, Defense, Transportation, the US Global Change 
Research Program, U.S. Agency for International Development, and other 
Federal agencies. The document was ultimately submitted by the State 
Department to the UNFCCC Secretariat on May 28, 2002.
    EPA made the document available on its website because of its 
advanced web hosting capability, which may have been interpreted as an 
indication that this was an EPA report. EPA hosts the Climate Action 
Report on its web site solely to assist the State Department in 
providing public access to the Report.
Enforcement: Performance Measures
    Question 4. Governor Whitman, you have said to the press that the 
only true measure of enforcement of our environmental laws is whether 
the environment is cleaner. I could not agree more. The health of our 
environment is the one true results-based, outcome-focused test of the 
effectiveness of our environmental laws.
    Others may have as their actual goals:

    a) miles of red tape to provide employment security for unions of 
bureaucrats, or
    b) scare-tactic fund-raising for leftist environmental groups, or
    c) lots of litigation to line the coffers of the trial lawyers.

    Assuming the health of the environment as our goal, can you tell me 
where EPA stands in development of appropriate performance measures for 
enforcement?
    Response. The Agency has developed several reports to describe the 
health of the environment, and the progress EPA's programs have made in 
cleaning and protecting the environment. The Agency is about to release 
its first ``State of the Environment'' report. The report will describe 
the status of the air, water and land in this country. Future updates 
to this baseline report will show the impacts of efforts made by the 
EPA, States, tribes and the regulated community on the health of the 
environment.
    EPA also reports on its performance in protecting and improving the 
environment through an Annual Performance Report, which the Government 
Performance and Results Act (GPRA) requires be submitted to Congress 
each year. This report follows the structure of the Agency's current 
Strategic Plan, which has strategic goals for Clean Air, Clean and Safe 
Water, Waste Management, and Credible Deterrent to Pollution and 
Greater Compliance with the Law.
    The environmental results of cleaner air, water and land are 
attributable to new programs, better run programs, and compliance with 
the regulations covering those programs. The ``Credible Deterrent and 
Greater Compliance'' Goal (i.e. the compliance goal), highlights the 
environmental outcomes of actions taken to bring a regulated entity 
back in to compliance. The goal measures the pounds of pollutants to be 
reduced from concluded enforcement actions, the percentage of concluded 
actions that require pollutant reductions and/or changes in facility 
management practices that will help a regulated entity remain in 
compliance. This goal also measures the positive behavioral changes in 
the regulated community resulting from compliance assistance activities 
provided by EPA, the States, or tribes. The compliance goal also 
measures key outputs, such as the monitoring EPA accomplishes through 
inspections, the training EPA provides its States and tribal regulatory 
partners, and the incentives programs made available to facilities in 
noncompliance. The incentives program encourages facilities to audit 
their activities, correct any instances of noncompliance, and disclose 
to EPA the actions taken. The Agency, in return, has the authority to 
reduce or completely eliminate any penalties associated with the 
discovered and corrected violations.
Safe Drinking Water SRF Funding Versus Clean Water SRF Funding
    Question 5. Please explain why the budget request for the Safe 
Drinking Water Revolving Loan Fund is consistent with last year's 
request while the budget request for the Clean Water Revolving Loan 
fund is down.
    Response. The President's 2004 budget proposal actually increases 
the Federal Government's investment in water and wastewater 
infrastructure. Previous Administrations had only committed to funding 
the CWSRF program at $1.212 billion in 2004 and 2005 (a total of $2.4 
billion), with no funding thereafter. The President is proposing to 
extend Federal capitalization through 2011--an additional 6 years, at 
$850 million per year, for a total of $6.8 billion. Thus, the 
President's proposal provides $4.4 billion more than previous plans. 
These additional Federal funds, when combined with other CWSRF funding 
sources, are projected to substantially increase the amount of 
assistance provided by the CWSRF program in both the short-term and 
long-term. That has allowed the Administration to increase the CWSRF 
projected long-term target revolving level from $2 billion to $2.8 
billion per year: a 40 percent increase.
    The Administration is proposing to extend Federal support for the 
Drinking Water SRF so it can revolve at $1.2 billion per year, an 
increase of 140 percent over the previous goal of $500 million. To 
realize this increased revolving level, the Administration is proposing 
$850 million for fiscal year 2004 to fiscal year 2018. This proposal 
extends the commitment for the DWSRF well beyond the fiscal year 2003 
authorization period.
EPA Ombudsman
    Question 6a. I understand that EPA has been working on drafts of 
proposed Ombudsman legislation. Please provide me with copies of these 
drafts.
    Response. EPA has been asked to provide technical assistance by 
both House and Senate congressional staff concerning EPA Ombudsman 
legislation. Upon request, the Agency would be pleased to meet with the 
committee to discuss EPA Ombudsman issues or provide technical 
assistance.

    Question 6b. Do I have your commitment to continue toward enactment 
of legislation on the issue of an EPA Ombudsman.
    Response. EPA strongly supports an independent, effective, 
impartial, ombudsman function in the Agency. As I stated in my letter 
to you on April 8, 2003, I believe that the transfer of the function to 
the Office of Inspector General (OIG) was a sound decision. No other 
office within the Agency provides the ombudsman function with the depth 
and breadth of independence and investigatory powers that is provided 
by statute to the OIG. I continue to strongly oppose any attempt to 
move the ombudsman function elsewhere within the Agency. However, EPA 
is always willing to discuss with the committee legislative efforts to 
improve EPA policies and programs.
Mercury
    Question 7a. Governor Whitman, your Children's Health report 
released Monday states that there is ``some increased risk of adverse 
effects'' from mercury blood concentrations for 8 percent of women of 
child-bearing age, and therefore mercury is ``of concern.'' When you 
say ``at risk,'' what does that mean?
    Response. ``At risk'' means that the women have mercury exposures 
higher than those considered to be without adverse effects. 
Approximately 8 percent of women of childbearing age representative of 
the United States population based on data from the National Health and 
Nutrition Examination Survey (published in April, 2003 in the Journal 
of the American Medical Association\1\) had blood mercury 
concentrations higher than the U.S. Environmental Protection Agency's 
recommended reference dose (RfD) (corresponding to blood mercury 
concentrations of 5.8 mg/L whole blood). Methylmercury exposures lower 
than the RfD are considered not to be associated with adverse effects.
---------------------------------------------------------------------------
     \1\Schober SE, Sinks TH, Jones RL, Bolger PM, McDowell M, Osterloh 
J, Garrett ES, Canady RA, Dillon CF, Sun Y, Joseph CB, and Mahaffey KR. 
Blood mercury levels in U.S. children and women of childbearing age, 
1999-2000. JAMA 289:1667-1674, 2003.
---------------------------------------------------------------------------
    The specific effects of concern are learning deficits that occur in 
the child following fetal exposures of the developing brain during 
pregnancy. The risk of adverse effects increases as methylmercury 
exposure to the fetus increases. Fetal risk occurs because mercury, 
specifically methylmercury, freely crosses the placenta resulting in 
transfer of methylmercury from the mother's blood to the fetal blood. 
In evaluating risk to the developing nervous system caused by 
methylmercury, blood mercury and methylmercury concentrations are used 
to indicate how much methylmercury the woman has been exposed to. The 
determination of ``at risk'' is based on analysis and identification of 
what are called benchmark dose, benchmark dose lower limit and 
reference dose values. These values are interrelated.
    The National Academy of Sciences Committee on Toxicology of 
Methylmercury decided to use the ``benchmark dose'' approach to setting 
a level of exposure to methylmercury thought to be without adverse 
effects. The ``benchmark dose'' is a statistical method of analyzing 
data to determine the dose of a chemical that produces an effect in a 
selected percent of the population. Specific to methylmercury, the 
``benchmark dose'' was based on blood methylmercury concentrations that 
increased the prevalence of children (following prenatal exposure to 
methylmercury from their mothers' diets) scoring in the clinically 
subnormal range (the lowest 5th percentile) on tests of 
neuropsychological function at a rate double that of the background 
rate. The background rate refers to the prevalence of clinically 
subnormal scores on these tests in a population with background 
exposures to methylmercury. In clinical use of these neuropsychological 
tests, persons who score in the lowest 5 percent of the overall 
population are considered to be in a clinical subnormal range. Another 
way of stating this is that children who function at or below 
approximately the 5th percentile would be considered significantly 
developmentally compromised for the ability that is being measured. For 
example, this would correspond to an IQ score of less than 75, or refer 
to low performance on standard tests for more specific abilities such 
as attention, language, or memory.
    When methylmercury exposures reach the ``benchmark dose'' (BMD) 
level the prevalence of these low scores would increase from 5 percent 
to 10 percent. Because of statistical variability in this estimate of 
dose an additional value is calculated called the Benchmark Dose Lower 
Limit called the BMDL. The BMDL is the lower limit on the 95 percent 
confidence interval around the BMD.
    Because the BMD and BMDL for methylmercury are associated with 
doubling the percentage of children functioning in the clinically 
subnormal range, it was judged by the Committee on Toxicology for 
Methylmercury that it would not be advisable to recommend that 
methylmercury exposures at the BMD and/or BMDL are without risk because 
of the increase in prevalence of adverse neurobehavioral effects. The 
NAS Committee recommended use of an ``uncertainty'' factor be used in 
setting an exposure considered to be without adverse effects. This 
``uncertainty factor'' is an attempt to deal with variability in human 
response to a particular dose of mercury. This variability reflects 
person-to-person differences in the distribution of methylmercury 
through out body tissues (called toxicokinetic variability) and 
differences in the sensitivity of tissues to the adverse effects of 
methylmercury (called toxicodynamic variability). The NAS Committee 
recommended in their report that a factor of not less than 10 be 
applied to the BMDL to set an exposure considered to be without adverse 
effects. This exposure is comparable to the Reference Dose (RfD).
    Following release of the NAS Committee on Toxicology of 
Methylmercury's report in the summer of 2000, EPA did an assessment of 
the NAS recommendations. This assessment is the basis for EPA's 2001 
Reference Dose for Methylmercury which is described on EPA's Integrated 
Risk Information System (IRIS) web site (/4/http://
www.epa.gov/iris/subst/0073.htm>); in EPA's Office of Water's Mercury 
Criterion (cited in the Federal Register, Volume 66, Number 5, pages 
1344-1359 dated 01/08/01; and in a publication in the peer-reviewed 
journal Risk Analysis.\2\
---------------------------------------------------------------------------
     \2\Rice DC, Schoeny R, and Mahaffey K. Methods and rationale for 
derivation of a reference dose for methylmercury by the U.S. EPA. Risk 
Analysis 5:107-115, 2003.
---------------------------------------------------------------------------
    To summarize, the BMDL for methylmercury is 58 mg methylmercury /L 
of cord blood. The RfD is 5.8 mg methylmercury/L of cord blood. These 
blood mercury concentrations are associated with exposures to 
methylmercury of 1 mg/kg body weight/day at the BMDL and 0.1 mg/kg body 
weight/day at the RfD. As exposures to methylmercury increase from the 
RfD and rise to the BMDL, the chances of adverse effects on the 
developing nervous system increase. It is not known whether the 
increase in risk is linear with increasing exposure. Above the RfD the 
risk of adverse effects increases.
    The reason women of childbearing age rather than only pregnant 
women are considered the population at risk is because mercury has a 
long residence time in the body. The time it takes for half of the 
mercury absorbed today to be removed from the body is called a ``half-
time''. Due to the fact that body ``compartments'' such as kidney or 
brain cannot be analyzed directly, the levels measured in living 
people--the ``half-time'' measurements, are based on blood mercury 
concentrations. For mercury the half-time in blood is generally about 
70 days but may be as long as 180 days. In other words, it takes 
between 2 and 6 months for half the day's mercury absorption to be 
removed. About half of the mercury present in blood comes from fish and 
shellfish that were consumed two to 3 months ago. For this reason 
mercury exposures before pregnancy must be considered, as well as 
mercury exposures during pregnancy, especially since methylmercury is 
likely to affect fetal brain development early in fetal life. Because 
mercury is likely to affect fetal brain development early in fetal 
life, it's not enough to be concerned about a woman's exposure to 
mercury after she becomes pregnant.

    Question 7b. The study underlying your report shows that children 
born to women with blood levels above 58 parts per billion have 
statistically double the risk of decreased performance on the Boston-
naming test. But the report itself states that no women in the entire 
Nation have been tested at levels that high. Doesn't this indicate that 
the high risks indicated in the report are premised entirely on the 
assumption one makes about the uncertainty factor that is appropriate?
    Response. The linkage of 58 parts per billion mercury and 
statistically double the risk of decreased performance on the Boston-
naming tests refers to the overall basis of the National Academy of 
Science's Committee on Toxicology of Methylmercury and U.S. EPA's 
approach to setting a mercury exposure standard. In addition, as 
reported in the recently published article ``Blood Mercury Levels in 
U.S. Children and Women of Childbearing age, 1999-2000'' in JAMA (cited 
above) the women examined in the referenced NHANES 1999-2000 NHANES 
study were a representative sample of the general U.S. population. The 
NHANES study did not seek out women because they ate fish. The range of 
blood mercury levels reported in NHANES 1999-2000 was in the high 30 
mg/L range which is lower than the BMDL. Based on reports in the peer-
reviewed medical literature there are individuals in the United States 
with total blood mercury levels near or above the BMDL of 58 mg/L.\3\ 
\4\ \5\ \6\ \7\ We do not know how many there are. The NHANES survey 
and these studies did not include enough women to predict how many 
women in the United States would have blood mercury values over 58 mg/
L. Regarding the size of the Uncertainty Factor used in setting the 
Reference.
---------------------------------------------------------------------------
     \3\Knobeloch LM, Ziarnik M, Anderson HA, and Dodson VN. 1995. 
Imported seabass as a source of mercury exposure: A Wisconsin case 
study. Environmental Health Perspectives 103:604-606.
     \4\Burge P, and Evans S. 1994. Mercury contamination in Arkansas 
gamefish: A public health perspective. J. Arkansas Med Soc 90:542-548.
     \5\Gerstenberger SL, Tarvis DR, Hansen LK, Pratt-Shelley J, and 
Dellinger JA. 1997. Concentrations of blood and hair mercury and serum 
PCBs in an Ojibwa population that consumes Great Lakes region fish. J. 
Toxicol. Clinical Toxicology 35: 377-386.
     \6\Mahaffey KR, Mergler D. Blood levels of total and organic 
mercury in residents of the upper St. Lawrence River basin, Quebec: 
Association with age, gender, and fish consumption. Environ Res 77:104-
114, 1998.
     \7\Hightower JM, Moore D. Mercury levels in high-end consumers of 
fish. Environ Health Perspect 111:604-608, 2003.
---------------------------------------------------------------------------
    Dose for methylmercury several separate issues need to be 
considered in answering this question: the impact of these deficits on 
child development, the blood mercury concentration and dietary exposure 
at which the proportion of children scoring in the clinically subnormal 
range doubles, and the size of the uncertainty factor in comparing the 
benchmark dose and the level of mercury exposure considered without 
adverse effects, i.e., the Reference Dose.
    Turning first to the impact these developmental deficits on child 
development. The blood mercury concentration of 58 parts per billion 
refers to the mercury concentration in fetal blood at which decrements 
occur in performance on numerous tests of the ability to learn and 
process information. The Boston Naming test is among these tests, but 
the performance decrement is seen on five additional tests of language 
acquisition and the utilization of and ability to process information 
from the Faroe Islands study, and five endpoints including full-scale 
IQ from the New Zealand study. The overall analysis by the National 
Academy Committee included examination of results from the Seychelles 
Islands studies in their assessment of the impacts of methylmercury 
exposure on child development. To place these tests in practical 
perspective, the NAS concluded that ``deficits of the magnitude 
reported in the [Faroe and New Zealand] studies are likely to be 
associated with increases in the number of children who have to 
struggle to keep up in a normal classroom or who might require remedial 
classes or special education.''
    When the U.S. EPA set the 2001 Reference Dose for methylmercury it 
relied on the National Academy Committee's report and on independent 
peer review\8\ of the Agency scientists' assessment of the NAS report 
to develop the RfD for methylmercury (see charts included in response 
to question 14). This assessment relied upon multiple tests that are 
predictive of reading and mathematics performance, overall academic 
performance, and antisocial behavior.
---------------------------------------------------------------------------
     \8\The independent peer reviewers compared and contrasted some raw 
data as well as summary data for over 50 studies relating to mercury 
and its impacts on humans. Refer to ``Water Quality Criterion for the 
Protection of Human Health: Methylmercury''; p. 3-1 to 3-53; EPA-823-R-
01-001; January 2001. EPA examined raw data for the Mercury Report to 
Congress, op. cit
---------------------------------------------------------------------------
    Turning to the question of what exposures produce a fetal blood 
mercury in the range of the high 50's mg/L or approximately 58 mg/L. 
This blood concentration refers to the blood mercury level reaching the 
fetal brain or simply fetal blood mercury. This is the blood mercury 
concentration that data from multiple studies indicate harms the fetal 
brain to the extent that the number of children scoring in a clinically 
subnormal range (in the lowest 5th percentile) on standard tests of 
ability to process information (i.e., as shown by important tasks such 
as ability to read and do mathematics) doubles. The committee concluded 
that exposures producing a doubling of children scoring in a clinically 
subnormal range are inadvisable. Consequently the recommendations on an 
exposure to methylmercury considered to be without adverse effects 
contain a buffer between the exposure causing effects and an acceptable 
exposure. This buffer is referred to as an uncertainty factor. EPA used 
an uncertainty factor of 10, based on its own review and the 
recommendation by NAS.
    The uncertainty factor reflects person-to-person differences in the 
way mercury is distributed in the body and differences in the 
susceptibility of the developing brain to the effects of methylmercury. 
The importance of this buffer is already known only 2 years after the 
Reference Dose was set. For example, at the time the Reference Dose was 
set it was thought that there was a 1:1 ratio between the mother's 
blood mercury level and the fetal blood mercury level. It is now known 
that some fetuses concentrate mercury to levels three times higher than 
the maternal blood mercury concentration. On average fetal blood 
mercury is about 70 percent higher than the mother's blood mercury as 
is reported in a recently published article by Drs. Stern and Smith, 
``An Assessment of the cord-blood: maternal-blood ratio: Implications 
for risk assessment,'' in the journal Environmental Health 
Perspectives. Some of the fetuses examined in this study had three-and-
a-half times higher mercury levels than their mothers. There will be 
other person-to-person differences in how mercury is distributed to 
tissues and how sensitive the developing brain is to methylmercury 
damage.

    Question 7c. Isn't it true that other Federal agencies have used 
far less conservative uncertainty factors, resulting in EPA estimating 
a far higher number of women of child-bearing age with potentially 
unsafe blood levels?
    Response. Two U.S. Federal agencies have recommendations on 
exposures to methylmercury based on human health effect data. The Food 
and Drug Administration's value dates from the early 1970's and bases 
its value of 0.4 mg/kg body weight /day on adults using a prevalence of 
overt neurological damage (specifically paresthesias) in 5 percent of 
the population as its endpoint. The FDA is no longer using this number. 
In developing FDA's fish advisories for the at-risk population the FDA 
is using on EPA's 2001 RfD for methylmercury of 0.1 mg/kg bw /day. 
Currently the FDA is conducting a quantitative exposure assessment for 
methylmercury intake from fish consumption to determine appropriate 
fish advisory language.
    The Agency for Toxic Substances and Disease Registry (ATSDR) has a 
minimal risk level for methylmercury to be used in clean-up of waste 
sites. After consideration of available data, including the Faroese and 
New Zealand data, ATSDR based their study on the Seychelles Islands 
data only. ATSDR used an uncertainty factor of 4.5, which is an 
uncertainty factor smaller than that of U.S. EPA which used an 
uncertainty factor of 10 following the recommendation of the NAS 
Committee.
    Most recently, the Joint Food and Agricultural Organization/World 
Health Organization's Expert Committee on Food Additives recommended a 
methylmercury intake of 1.6 mg/kg bw/week or 0.23 mg/ kg bw/day. Their 
analysis used both the Seychelles Islands and the Faroes Islands 
studies results. (ftp://ftp.fao.org/es/esn/jecfa/jecfa61sc.pdf, p. 20/
22).
    There are additional risk assessments for adverse effects of 
methylmercury based on adverse effects on the developing fetal nervous 
system. The most recent come from JECFA (given above), the United 
Kingdom (February of 2003), the European Union (October of 2001) and 
finally Germany (2000). All four of these risk assessments use fetal 
neurological development as their health endpoint and have recommended 
an exposure limit similar to U.S. EPA.
    Question 7d. Making data available is one of the problems I'm 
trying to correct when I talk about sound science. Has the primary 
study upon which you draw your conclusions, the Faroe islands study, 
ever made available its raw data supporting its conclusions so that 
other scientists can evaluate the data?
    Response. It is our understanding that the NAS Committee on the 
Toxicology of Methylmercury had full access to the Faroe Islands study 
data and conducted analyses of these data in the committee's 
deliberations. For specific description of how these analyses were 
conducted by the NAS Committee it will be necessary to contact the 
National Academy of Sciences. EPA and the independent peer reviewers of 
EPA's RfD analysis did not evaluate the raw data from the Faroe Islands 
Study. It is EPA's understanding that primary analysis of data was 
carried out by the Committee on Toxicological Effects of Methylmercury 
of the National Academy of Sciences. Consequently the primary data have 
been made available for the expert committee's evaluation. The 
conclusions of the NAS committee were based on assessment data from all 
three cohorts: the Faroese, the Seychelles, and New Zealand. U.S. EPA's 
Reference Dose is based on examination of results from all three 
longitudinal cohort studies that were available in 2001: the Faroe 
Islands, New Zealand, and the Seychelles Islands.
    US EPA did its own analyses to determine the size of the 
Uncertainty Factor that should be applied to the BMDL to determine the 
Reference Dose. The NAS Committee had recommended a factor of not less 
than 10. Based on EPA analyses and the recommendations of EPA's 
external peer review panel, the uncertainty factor utilized was 10.
    Question 7e. Is it true that one of the two largest studies ever 
conducted on mercury health effects, the Seychelles Islands study, 
found no health effects, yet this study is not being used to set the 
reference dose simply because it found no health effects?
    Response. In setting U.S. EPA's 2001 Reference Dose data from the 
Seychelles, the Faroe Islands, and New Zealand were evaluated. 
Benchmark Dose and Benchmark Dose Lower Limit were calculated for all 
three studies. The calculated Reference Doses for both the Faroe 
Islands and New Zealand studies are included in the following table as 
separate lines. However, the Seychelles Study is not presented as an 
individual study and is incorporated into the ``integrative/all 
endpoints'' analysis. (Refer to table in Appendix A which provides more 
detail on the data used for the integrative analysis). This table can 
be found in the EPA's Integrated Risk Information System (IRIS) file 
(http://www.epa.gov/iris/subst/0073.htm) and Drs. Rice, Schoeny and 
Mahaffey publication in Risk Analysis, 2003.\9\
---------------------------------------------------------------------------
     \9\Rice DC, Schoeny R, and Mahaffey K. Methods and rationale for 
derivation of a reference dose for methylmercury by the U.S. EPA. Risk 
Analysis 5:107-115, 2003.

 ----------------------------------------------------------------------------------------------------------------
                                                                  Ingested dose mg/kg/
               Test\1\                 BMDL05 ppb Mercury Cord           day\2\               RfD mg/kg/day
----------------------------------------------------------------------------------------------------------------
              BNT Faroes
Whole cohort.........................                       58                    1.081                      0.1
PCB-adjusted.........................                       71                    1.323                      0.1
Lowest PCB...........................                       40                    0.745                      0.1
              CPT Faroes
Whole cohort.........................                       46                    0.857                      0.1
PCB-adjusted.........................                       49                    0.913                      0.1
Lowest PCB...........................                       28                    0.522                     0.05
             CVLT Faroes
Whole cohort.........................                      103                    1.920                      0.2
PCB-adjusted.........................                       78                    1.454                      0.1
Lowest PCB 52 0.969 0.1..............
          Finger Tap Faroes
Whole cohort.........................                       79                    1.472                      0.1
PCB-adjusted.........................                       66                    1.230                      0.1
Lowest PCB 34 0.634 0.1..............
        Geometric mean Faroes
Whole cohort.........................                       68                    1.268                      0.1
PCB-adjusted.........................                       65                    1.212                      0.1
Lowest PCB...........................                       24                    0.447                     0.05
        Geometric mean Faroes
Whole cohort.........................                       68                    1.268                      0.1
PCB-adjusted.........................                       65                    1.212                      0.1
Lowest PCB...........................                       34                    0.634                      0.1
           Smoothed values
BNT Faroes...........................                       48                    0.895                      0.1
CPT Faroes...........................                       48                    0.895                      0.1
CVLT Faroes..........................                       60                    1.118                      0.1
Finger Tap Faroes....................                       52                    0.969                      0.1
MCCPP New Zealand....................                       28                    0.522                     0.05
MCMT New Zealand.....................                       32                    0.596                      0.1
            Median values
Faroes...............................                       48                    0.895                      0.1
New Zealand..........................                       24                    0.447                     0.05
Integrative**/all endpoints..........                       32                    0.596                      0.1
----------------------------------------------------------------------------------------------------------------
\1\BMDLs from NRC (2000), Tables 7-4,7-5,7-6. Hair mercury was converted to blood mercury using a 250:1 ratio
  (WHO, 1990) and an assumption of equivalent maternal and cord levels.
\2\BNT=Boston Naming Test; CPT=Continuous Performance Test; CVLT=California Verbal Learning Test; MCCPP=McCarthy
  Perceived Performance; MCMT=McCarthy Motor Test.

    In deriving EPA's Reference Dose the BMDLs from the endpoints from 
all three studies considered by the National Academy's Committee were 
converted using a one-compartment kinetic model to an ingested dose of 
methylmercury associated with a corresponding cord blood level. This 
resulted in a BMDL of 58 mg methylmercury/L of cord blood as a fetal 
mercury exposure that would result in a doubling of the prevalence of 
children with developmental deficits severe enough to place children in 
a clinically subnormal range on tests of child development. An 
Uncertainty Factor is then applied to the BMDL value to recommend a 
Reference Dose, expressed as microgram of methylmercury per kilogram of 
body weight per day.

    Question 7f. Doesn't this selective use of available testing data 
produce biased results that may overstate the real risk?
    Response. U.S. EPA in setting the Reference Dose for methylmercury 
has included in our analysis all available data from the three major 
cohort studies that were available in 2000 to set its Reference Dose.
                               appendix a
Table 7-2 Benchmark Dose Calculations (ppm MeHg in maternal hair) from 
        various Studies and for Various End Points (``Toxicological 
        Effects of Methylmercury''; NAS; p. 284; Sep 2000)

 ----------------------------------------------------------------------------------------------------------------
                     Study                                     End Point                   BMD\1\        BMDL
----------------------------------------------------------------------------------------------------------------
Seychelles\2\.................................  Bender Copying Errors.................       \3\***           25
                                                Child Behavior Checklist..............           21           17
                                                McCarthy General Cognitive............          ***           23
                                                Preschool Language Scale..............          ***           23
                                                WJ Applied Problems...................          ***           22
                                                WJ Letter/Word Recognition............          ***           22
Faroe Islands\4\..............................  Finger Tapping........................           20           12
                                                CPT Reaction Time.....................           17           10
                                                Bender Copying Errors.................           28           15
                                                Boston Naming Test....................           15           10
                                                CVLT: Delayed Recall..................           27           14
New Zealand\5\................................  TOLD Language Development.............           12            6
                                                WISC-R:PIQ............................           12            6
                                                WISC-R:FSIQ...........................           13            6
                                                McCarthy Perceptual Performance.......            8            4
                                                McCarthy Motor Test...................           13            6
----------------------------------------------------------------------------------------------------------------
\1\BMDs are calculated from the K-power model under the assumption that 5 percent of the responses will be
  abnormal in unexposed subjects (P0 = 0.05), assuming a 5 percent excess risk (BMR = 0.05)
\2\Data from Crump et al. 1998, 2000. ``Extended'' covariates
\3\***indicates value exceeds 100
\4\Data from Budtz-Jorgensen et al. 1999
\5\Data from Crump et al. 1998, 2000.

    Question 7g: If power plants did not emit any mercury at all, how 
much would this reduce mercury exposure to women of child-bearing age?
    Response. People are exposed to methylmercury mainly through eating 
fish contaminated with methylmercury. Mercury that ends up in fish may 
originate as emissions to the air. Mercury released into the atmosphere 
can be deposited near the source or can travel long distances on global 
air currents and be deposited in areas far from its original source. 
The largest human-generated source of mercury emissions in the United 
States is the burning of coal. Other sources include the combustion of 
waste and industrial processes that use mercury. Mercury usually is 
released in an inorganic form and later converted into methylmercury by 
bacteria, primarily in the water. Methylmercury is toxic to humans. 
Methylmercury accumulates through the food chain: fish that eat other 
fish can accumulate high levels of methylmercury.
    As discussed above, there is a plausible link between anthropogenic 
releases of mercury from industrial and combustion sources in the 
United States and methylmercury in fish. These fish methylmercury 
concentrations also result from existing background concentrations of 
mercury (which may consist of mercury from natural sources, as well as 
mercury which has been re-emitted from the oceans or soils) and 
deposition from the global reservoir (which includes mercury emitted by 
other countries). U.S. anthropogenic mercury emissions are estimated to 
account for roughly 3 percent of the global total, and U.S. utilities 
are estimated to account for roughly 1 percent of total global 
emissions. Given the current scientific understanding of the 
environmental fate and transport of this element, it is not possible to 
quantify with precision how much of the methylmercury in fish consumed 
by the U.S. population is contributed by U.S. emissions from utilities 
relative to other sources of mercury.
    Modeling results suggest that most of the mercury emitted to the 
atmosphere is deposited more than 50 km away from the source, 
especially sources that have tall stacks. There is also wide range of 
predicted mercury deposition rates throughout the United States as 
source location, climate, and meteorology all play a role in modulating 
deposition. These are just some of the reasons why we have not yet been 
able to link specific mercury emissions to the amount of methylmercury 
available in the food chain.
    In the last few years EPA has imposed stringent regulations on 
emissions from other large sources of mercury emissions including 
Medical Waste Incinerators and Municipal Waste Combustors, reducing 
their emissions by over 90 percent. In addition, Clear Skies will 
reduce mercury emissions from coal fired power plants by almost one-
half by 2010 and will cap mercury emissions by nearly 70 percent in 
2018. These three categories of sources made up nearly three-quarters 
of mercury emissions in the US before regulations were imposed.
TMDL Rule
    Question 8a: In the 2001 appropriations bill for Military 
Construction, Congress prohibited the EPA from using any of its funds 
to implement the highly controversial and flawed Clinton Administration 
TMDL rule.
    Consistent with these congressional concerns about the rule, the 
Bush Administration suspended its implementation. Communities and 
States are now struggling to develop TMDLs under the existing 1992 
regulations, which have been interpreted differently by the courts and 
EPA regions.
    Further, the 1992 regulations do not address emerging problems 
identified by the National Academy of Sciences study required by this 
committee.
    EPA has an obligation to end the uncertainty for the States and the 
regulated community and publish a rule that both protects our waters 
but provides States with flexibility in meeting new water quality 
objectives.
    Has the EPA has now completed the redrafting of the TMDL rule?
    Response. No.

    Question 8b: When will the rule be submitted for interagency 
review?
    Response. We do not have a specific schedule at this time.

    Question 8c: What is your timetable for promulgating the final TMDL 
rule?
    Response. We do not have a specific schedule at this time.
EPA and Nuclear Regulatory Commission
    Question 9. The fiscal year 2003 Omnibus Conference Report 
expressed concern that a recent MOU entered into between EPA and the 
Nuclear Regulatory Commission did not fully address jurisdictional 
concerns that had been raised in previous years by the Congress. Could 
you provide the committee an update as to the progress made on a 
revised MOU. Absent legislation, does the Agency have the authority to 
address all the jurisdictional concerns expressed by Congress?
    Response. EPA and the Nuclear Regulatory Commission (NRC) developed 
a Memorandum of Understanding (MOU) to identify how the two agencies 
will work together during the decommissioning and decontamination of 
NRC-licensed sites. This MOU was developed in response to the direction 
from the House Committee on Appropriations. The committee directed EPA 
and NRC to work together on an MOU to address the potential for dual 
regulation. The committee first addressed the issue of EPA/NRC 
coordination at NRC licensed or decommissioned sites in the House 
Committee on Appropriations Report on August 3, 1999. Subsequent 
Reports by the committee continued to address this issue. The fiscal 
year 2003 Omnibus Conference Report criticizes the MOU with the 
following language, ``The committee's direction was for the two 
agencies to enter into an MOU which would clarify the circumstances for 
EPA's involvement at NRC sites ``when requested by the NRC.'' This 
direction was not followed.''
    EPA and NRC are not currently working on a revision to the MOU. EPA 
sent letters signed on April 22, 2003 to the Senate and House Committee 
chairs and ranking members on this issue. These letters explain why EPA 
believes that monthly reports may not be appropriate and describe 
CERCLA legal constraints that would limit EPA's ability to follow the 
committee's direction. The letter also explains why EPA should not, as 
a matter of policy, waive the possibility of EPA involvement under 
CERCLA in response to releases of radioactive material from previously 
or currently licensed NRC facilities. The letter further states: ``EPA 
believes the current MOU reflects the public interest in carrying out 
both EPA's and NRC's programs without significant threat of dual 
regulation. However, if the committee's concerns about this issue 
remain, EPA will gladly inform the committee prior to listing current 
or formerly NRC licensed facilities. We suggest that such notice 
substitute for monthly reports on the status of an effort to revise the 
current MOU.''
    EPA is looking forward to working with NRC on implementation of the 
MOU. EPA believes that implementation of the MOU between the two 
agencies should help ensure that potential confusion about dual 
regulation does not occur regarding the cleanup and reuse of NRC 
licensed sites. EPA remains unconvinced that legislative amendments to 
CERCLA are necessary.
CERCLA
    Question 10. CERCLA (42 U.S.C. sec. 9614) provides, under certain 
conditions, liability relief for ``service station dealers.'' 
Unfortunately, many who are eligible for this exemption may not be 
aware of their eligibility. What is EPA doing to ensure that these 
small businesses are informed of potential eligibility? Has EPA 
developed an application form or other means to inform those who have 
been identified as a PRP and may qualify for liability relief under 42 
U.S.C. sec. 9614?
    Response. EPA has taken numerous steps to implement the ``Service 
Station Dealer Exemption'' (SSDE) and to assure that our regional 
offices are aware of the exemption requirements. These efforts include 
the following: Issuing a memorandum to EPA regional offices on May 31, 
2002, entitled ``Use of CERCLA Section 114(c) Service Station Dealers 
Exemption'', describing the provision; Discussing SSDE implementation 
at several Superfund National Senior Managers' meetings (most recently, 
Principal Deputy Assistant Administrator for the Office of Enforcement 
and Compliance Assurance led a discussion in March 2003, with National 
Superfund Division Directors); Including SSDE in CERCLA New Attorney 
Training (next offering May 2003) and also in the Superfund ``PRP 
Search Manual''; Meeting with the National Small Business Ombudsman 
(March 5, 2003) regarding the SSDE and opportunities for educating both 
service station dealers and EPA about the exemption; and redistributing 
the May 31, 2002 memorandum to senior regional managers on March 31, 
2003.
    In addition, EPA met with representatives of the service station 
industry on February 25, 2003. During this meeting, EPA committed to 
continue to evaluate ways to streamline and standardize implementation 
of the SSDE to facilitate the goal of getting properly exempt parties 
out of a case as early as possible. Participants at this meeting agreed 
that using CERCLA 104(e) information requests would be an appropriate 
and efficient method of gathering the information necessary to make a 
determination of whether the exemption has been met. Since the time of 
this meeting, EPA has begun developing a draft model CERCLA 104(e) 
information request for the SSDE. We are also developing model language 
incorporating information about SSDE into general and special notice 
letters as part of an on-going effort to develop new model notice 
letters for use with small businesses.
Compliance Models
    Question 11. The Data Quality requirements apply to models. When 
will EPA begin its review of its models for compliance, including 
access by the public and validation of the models?
    Response. In a memorandum signed on 7 February 2003, Administrator 
Whitman affirmed the Agency's commitment to``. . . (m)ake publicly 
accessible an inventory of EPA's most frequently used models, which 
will include information on a model's use, development, validation, and 
quality assessment.'' To follow through on this commitment, EPA--in an 
effort being coordinated by the cross-Agency Council for Regulatory 
Environmental Models (CREM)--has already begun to develop the data base 
infrastructure necessary to provide this information through a web-
accessible interface. The CREM is also gathering information from the 
various EPA program and regional offices to formulate a list of which 
models are most frequently used by EPA.
    As the CREM develops this preliminary list of models, it is relying 
on the judgment of each of the program and regional offices as to which 
models will be included. Eventually, as this inventory of EPA models is 
developed further, EPA anticipates that it will contain a wide variety 
of models, including the most frequently used models in the Agency.
    Starting with a few of the models on this preliminary list, the 
CREM has begun to develop content for the inventory. This content 
reflects the degree of transparency envisioned by the Administrator's 
statement by establishing substantive elements and format in a manner 
that both accommodates the diversity of models across the Agency and 
enhances cross-Agency consistency and ease of public access. The task 
of building the inventory presents a number of challenges and will take 
time, but it is a task that EPA has begun.
    EPA recognizes that there are two related efforts in response to 
the Administrator's memorandum--the task of building this inventory of 
models and the task of model validation and quality assessment. The 
purpose of the inventory is to document whether-not ensure that-a model 
has been subjected to evaluation and validation. Model validation and 
quality assessment is primarily the responsibility of the EPA office 
that is the model owner. To assist the various EPA offices, the CREM is 
coordinating the development of Agency guidance on model evaluation, 
another task enumerated in the Administrator's 7 February memorandum.
Department of Defense Environmental Legislation
    Question 12. Governor Whitman, you testified that, ``We have been 
working very closely with the Department of Defense, and I don't 
believe that there is a training mission anywhere in the country that 
is being held up or not taking place because of an environmental 
protection regulation,'' and ``[A]t this point in time I am not aware 
of any particular area where environmental protection regulations are 
preventing desired training.''
    At the same time, Assistant Administrator for Enforcement and 
Compliance Assurance J.P. Suarez testified that, ``[T]he 
Administration's bill appropriately takes account of the interests of 
the American people in military readiness and in environmental 
protection. I am confident that DoD and EPA can work together within 
the framework of the proposed law to ensure that America's armed forces 
are able to train to carry out their national security mission and that 
the Agency is able to carry out its mission of protecting human health 
and the environment.''
    Why do you believe that the environmental legislation proposed by 
the Department of Defense should be enacted when you also apparently 
believe there is no instance where it is needed?
    Response. Although the laws and regulations that EPA administers 
have not impeded readiness in the past, we believe the negotiated bill 
language appropriately addresses two equally compelling national 
priorities: military readiness and the protection of human health and 
the environment. We understand and support DoD's desire to protect 
against litigation EPA's longstanding, uniform regulatory policy 
regarding the handling of munitions.
                                 ______
                                 
    Responses of Administrator Christine Todd Whitman to Additional 
                    Questions from Senator Voinovich
MTBE: Oxygenate Standard Petition
    Question 1. In 2001, California petitioned EPA to waive the Federal 
oxygenate requirement for its fuels. This request, which was denied by 
the Agency, was made in response to an MTBE ban imposed by Governor 
Davis in response to concerns over groundwater contamination. The ban 
was originally set to eliminate all ethers including MTBE by January 1, 
2003. However, the deadline has been pushed back to January 1, 2004 
because of concerns that the ban will cause supply constraints and 
price spikes. As you may know, New York is currently scheduled to 
phaseout MTBE at the same time as California. Because New York imports 
such a high percentage of its oxygenated fuels, this ban could severely 
strain gasoline supply in New York and cause significant price 
increases. Do you anticipate that either of these States will petition 
EPA for a waiver of the oxygenate standard as California did in 2001, 
and if so, do you intend to grant or reject those waivers?
    Response. In a January 6, 2003 letter to Administrator Whitman, the 
New York State Department of Environmental Conservation (NYSDEC) 
requested a waiver from the oxygen requirement for reformulated 
gasoline (RFG) in the New York City area. We responded in a letter 
dated April 1, 2003 to NYSDEC, notifying them that ``the application 
and supporting information fail to address the requirements specified 
in the statute'' and that ``without the necessary technical supporting 
documentation, we are unable to evaluate the merits of the request and 
can take no further action.'' We provided a list of questions and 
information needs and once we receive further information from NYSDEC, 
we will then continue our evaluation of New York's request.
    It is not possible at this time to say whether we will grant or 
deny New York's request. Section 211(k)(2)(B) of the Clean Air Act 
establishes specific criteria that must be met before EPA may grant a 
waiver of the RFG oxygen content requirement. Under this section, EPA 
may waive the oxygen mandate, in whole or in part, ``upon a 
determination by the Administrator that compliance with such 
requirement would prevent or interfere with the attainment by the area 
of a national primary ambient air quality standard [NAAQS].'' We are 
not able to say whether or not New York will be able to meet the 
criteria of 211(k)(2)(B) until we receive additional technical data 
from them and we have conducted a rigorous substantive analysis on such 
data.
Wastewater Infrastructure
    Question 2. What are your thoughts on establishing a long-term 
sustainable and reliable source of Federal funding for wastewater 
infrastructure, such as a trust fund?
    Response. EPA has not taken a position on the creation of a ``trust 
fund,'' supported by special or dedicated Federal, State and/or local 
fees, to finance water and wastewater infrastructure through the State 
Revolving Fund programs. Unfortunately, stakeholders may be uninformed 
about what a ``trust fund'' means in the context of dedicated Federal 
revenues. First of all, the assets of the fund would belong to the 
Federal Government, and as trustee, the Federal Government can make 
unilateral changes to the terms and conditions of the ``trust.'' 
Second, a new fund for water pollution may run into budget scoring 
difficulties. For these reasons, we believe that reaching agreement on 
a dedicated funding source or sources would be difficult because of 
competing priorities and interests.
Clean Air Act Oxygenate Standard
    Question 3. Earlier this month, I introduced, along with a number 
of my colleagues, legislation that will provide statutory relief for 
California and New York by repealing the Clean Air Act's oxygenate 
requirement and triple the amount of ethanol produced in this country. 
This legislation is identical to the fuels package included in last 
year's energy bill (S. 517), which was strongly supported by the 
Administration. Do you plan on supporting this vital legislation again 
during this Congress?
    Response. The Bush Administration supports the fuel provisions of 
energy legislation that passed the Senate last year. That legislation 
would have maintained the environmental benefits of the Reformulated 
Gasoline program (RFG), prevented toxics backsliding, removed the RFG 
oxygen mandate, imposed a Federal phaseout of MTBE and included a 
national Renewable Fuels Standard. As the Assistant Administrator for 
the Office of Air and Radiation, Mr. Jeffrey Holmstead, stated in his 
testimony before the Senate Environment and Public Works Committee on 
March 20, 2003, the Administration reaffirms its support of your 
legislation, that is consistent with this approach.
Great Lakes
    Question 4. The budget contains a total of $33.6 million for EPA's 
Great Lakes efforts. However, if the new funding for the Legacy Program 
is removed, we see that the budget for the Lakes has been flat over the 
past few years. The EPA's Great Lakes National Program Office needs 
more funding because, among other things, it monitors ecosystem 
indicators, supports local protection and restoration of important 
habitats, and promotes pollution prevention. What will the entire 
budget for the Great Lakes go toward, and how does this compare to the 
needs of the Lakes?
    Response. The $33.6 million Great Lakes budget supports 
coordination by the Great Lakes National Program Office (GLNPO) of U.S. 
responsibilities under the Clean Water Act and the Great Lakes Water 
Quality Agreement with Canada. GLNPO will work to implement the Great 
Lakes Strategy in a community-based approach with Federal, State, 
Tribal, and local partners. Specific activities will include 
monitoring, toxics reduction, ecosystem protection and restoration, and 
addressing emerging or strategic issues such as invasive species and 
the Lake Erie dead zone.
    EPA will assess and report on the state of key Great Lakes 
ecosystem components, including trends in toxics in air and fish; beach 
closings; trophic status; phosphorus; and contaminated sediment 
remediation. GLNPO will also continue to lead development of management 
recommendations to address the inexplicably low dissolved-oxygen levels 
in Lake Erie, which have resulted in an increasing ``dead zone,'' 
despite U.S. and Canadian success in achieving total phosphorus 
targets.
    Through the Great Lakes Binational Toxics Strategy, EPA will 
continue to target persistent, toxic substances for reduction and 
virtual elimination. Using voluntary and regulatory tools to achieve 
reductions, EPA will stay on target for meeting 2006 goals for: PCBs 
(90 percent use reduction), Mercury (50 percent use and release 
reduction), and dioxins and furans (75 percent release reduction). EPA 
and partners will accelerate the pace at which contaminated sediments 
are addressed. Over the past 5 years, GLNPO and partners have 
remediated 100,000 to 400,000 cubic yards of contaminated sediments 
annually, in order that persistent toxics, which could adversely affect 
human health will no longer be biologically available through the food 
chain. With the $15 million proposed in support of the Great Lakes 
Legacy Act. The Agency will increase the number of new remedial action 
starts in the Great Lakes by all partners from three annually to five 
to six annually. Goals will include completing cleanup of all known 
sites in the Basin before 2025 and potentially accelerating the time 
required to de-list Areas of Concern (AOCs). EPA is working with States 
and local groups from the AOCs to expedite AOC de-listing. EPA, States, 
and local communities will strategically target reductions of critical 
pollutants and restoration of impaired beneficial uses through RAPs for 
AOCs and through LaMPs for Lakes Ontario, Michigan, Superior, and Erie.
    The Agency will support the efforts of States, Tribes, and local 
communities to protect and restore important habitats, emphasizing 
habitats important for biodiversity and ecological integrity, such as 
those necessary for endangered and threatened species. Cooperative 
efforts initiated with other Great Lakes Wetland Consortium members to 
implement the only basin-wide monitoring of Great Lakes coastal 
wetlands will continue. GLNPO will contribute its share toward the 
Great Lakes Strategy objective of protecting/restoring 100,000 acres of 
coastal and inland wetlands by 2010. In support of the Strategy's 
Invasive Species objectives, GLNPO will work with partners to enhance 
and monitor the effectiveness of the Chicago River Invasive Species 
barrier, report on results of a joint ``No Ballast on Board'' study, 
and finalize a plan for a rapid response to the introduction of 
invasive species.

    Question 5. As I mentioned during the hearing, funding for the 
Great Lakes Legacy Program in EPA's budget is well below the $54 
million authorized in the Act. Last year, the General Accounting Office 
completed a study on the cleanup of contaminated areas in the Great 
Lakes and found a significant lack of funding, which is one of the 
contributing factors to the ``slow progress of cleanup efforts.'' 
Congress passed the Legacy Act to address this funding shortfall: $50 
million for cleanup, $3 million for research and development, and $1 
million on public information grants. The funding in EPA's budget, 
while welcome, is inadequate. Can you tell me what funding is needed in 
the Great Lakes for remediation, what the $15 million would be spent 
on, and what impact increasing this amount to a total of $54 million 
would have on the Lakes?
    Response. The $15 million requested under the Legacy Act will be 
used for projects. It will increase the number of new remedial action 
starts in the Great Lakes by all partners from three annually to five 
to six annually. It will advance progress under the Great Lakes 
Strategy by accelerating the pace of contaminated sediment remediation. 
Goals include completing cleanup of all known sites in the Basin before 
the Great Lakes Strategy goal of 2025 and potentially accelerating the 
time required to de-list Areas of Concern.

    Question 6. As Governor in 1998, I released the State of the Lake 
report for Lake Erie because I was concerned that we had not 
established baseline information to document where we started or to 
track the progress we had made. Ten indicators were developed to 
measure environmental, economic, and recreational conditions related to 
the quality of life enjoyed by those living near or using the waters of 
Lake Erie. The Lake Erie Quality Index Report provides a baseline to 
measure our progress and shows the progress we have made to date, as 
well as the challenges for the future. Since this has proven to be 
invaluable to those of us concerned specifically with Lake Erie, I 
strongly believe it would be advantageous for the entire Great Lakes so 
that we can measure and track progress as well as identify areas of 
concern. Is the EPA currently doing or planning to do anything like 
this in the broader sense to measure where we have come from, where we 
are, and where we need to go in terms of the quality of the Great 
Lakes?
    Response. The Indicators being developed via the biennial State of 
the Lakes Ecosystem Conferences (SOLEC) are intended as a 
comprehensive, basin-wide set of indicators that will tell us whether 
we are meeting the goals of the Great Lakes Water Quality Agreement``. 
. . to restore and maintain the chemical, physical, and biological 
integrity of the waters of the Great Lakes Basin Ecosystem'' and 
provide answers to ``simpler'' questions such as: Can we drink the 
water?; Can we eat the fish?; and Can we swim in the water? Over 50 
governmental and non-governmental sectors were represented in 
contributions to the State of the Great Lakes 2001 document. Eighty 
indicators have been developed, and others have been proposed. Thus 
far, SOLEC indicator development and reporting are voluntary efforts. 
SOLEC indicators do not currently identify ``where we need to go.''
    Recognizing the need for a higher level baseline of progress on the 
Great Lakes and the need to identify ``where we need to go'', EPA has 
proposed a Great Lakes index as a part of GPRA reporting which is based 
upon SOLEC. This SOLEC-based index is in the March 5 draft of the new 
Agency Strategy /www.epa.gov/ocfopage/plan/2003sp.pdf>. 
Subobjective 4.3.3 on Goal 4, page 19 reads:
    By 2008, prevent water pollution and protect aquatic systems so 
that overall ecosystem health of the Great Lakes is improved by at 
least 2 points. (2002 Baseline: Great Lakes rating of 22 on a 40 point 
scale where the rating uses select Great Lakes State of the Lakes 
Ecosystem indicators based on a 1 to 5 rating system for each 
indicator, where 1 is poor and 5 is good.).
    Index components are: coastal wetlands, phosphorus concentrations, 
sediment contamination, benthic health, fish tissue contamination, 
beach closures, drinking water quality, and air toxics deposition. The 
Agency Strategy also includes ``Strategic Targets'' for toxic 
concentrations in fish and air, for AOC delisting, and for sediment 
remediation. The Strategic Targets were taken directly from or derived 
from the Great Lakes Strategy.
City of Akron's CSO Problems
    Question 7. The city of Akron and the Ohio EPA are working out a 
$377 million Long Term Control Plan to fix the City's CSO problems over 
the next 30 years. To pay for the proposed upgrades, the City will be 
implementing a series of 2 to 6 percent rate increases over the next 23 
years. As a result, rates will more than double. However, the City 
informs me that the U.S. EPA, which must also approve the Plan, is 
seeking to require the City to complete the work in 12 to 15 years, 
less than half the time. How is the City expected to comply with such a 
mandate if the Federal Government does not provide the funding to get 
the job done?
    Response. Financial assistance is available under Ohio's Clean 
Water State Revolving Fund loan program. The fiscal year 2004 
President's Budget Request extends the Clean Water State Revolving Fund 
through 2011 and increases the Federal commitment by $4.4 billion.

    Question 8. If the Federal Government won't help provide the 
funding, shouldn't the Federal Government be more flexible with the 
deadlines?
    Response. EPA is aware of the requirements for investments of time 
and resources for the preparation and implementation of a LTCP. In our 
coordination with municipalities and our State partners, EPA strives 
for achievement of environmental improvements as quickly as possible, 
while at the same time recognizing the legal, financial and 
administrative burden on municipalities in shouldering this 
responsibility. Decisions on implementation schedules are made on a 
case-by-case basis, and are negotiated between regulatory agencies and 
specific communities. We recognize that financial capability is a 
significant factor in determining an appropriate implementation 
schedule for CSO controls.
Water Infrastructure
    Question 9. In December, Senator Sarbanes and I sent a letter with 
37 other Senators to the President requesting a significant increase 
for the Clean Water and Drinking Water State Revolving Loan Fund 
programs. Specifically, we asked for $3.2 billion for the Clean Water 
SRF program and $2 billion for the Drinking Water SRF program. Given 
the billions of dollars in water infrastructure needs across the 
country, can you explain whether the EPA's budget request adequately 
addresses these needs?
    Response. We believe EPA's budget request, in the context of the 
President's new Clean water SRF capitalization plan, is sufficient to 
address the projected infrastructure investment gap. It is important to 
remember that the SRF programs only provide one source of funding for 
water infrastructure. The primary source of funding comes from local 
sources in the form of user fees. In addition, there are many other 
Federal and State programs that help fund infrastructure costs besides 
the SRF programs. Finally, the estimates of future infrastructure costs 
do not consider the significant cost savings that could result from the 
use of full cost pricing and Sustainable Management Systems including 
environmental management systems and asset management systems. EPA will 
actively support the pursuit by States and systems of these cost saving 
opportunities.

    Question 10. I was a strong supporter of the Wet Weather Quality 
Act of 2000 that was enacted in 2000. The bill created a 2-year, $1.5 
billion grant program to States for combined sewer overflow and 
sanitary sewer overflow projects. Although the Administration requested 
funding for the program for fiscal year 2002, Congress did not 
appropriate any funding for the program. Last year, I offered an 
amendment to the Water Investment Act to extend the program for another 
5 years. Do you believe there should be more grant moneys available to 
communities to help pay for water infrastructure projects?
    Response. EPA supports the Clean Water and Drinking Water State 
Revolving Funds (SRFs) as the primary vehicles to direct Federal 
financial assistance to water infrastructure projects. The revolving 
nature of the funds and their ability to leverage dollars makes them a 
more efficient tool than grants for infrastructure assistance.

    Question 11. Last year, Congress enacted legislation that requires 
most water systems to perform a vulnerability assessment of their water 
treatment and distribution systems and prepare or revise their 
emergency response plans. What funding has been provided to date for 
small, medium, and large systems to help offset the cost of these 
assessments and emergency response plans?
    Response. EPA targeted funds to activities that apply to all water 
utilities as well as size of drinking water system-specific efforts. 
For instance:

      $5 million supported the development of a wide range of 
technical assistance and training tools, including models that would 
assist both drinking water and wastewater systems in conducting 
vulnerability assessments. Approximately 8,000 operators of water 
utilities have received training on water security issues and 
approaches.
      About $50 million was awarded directly to more than 400 
of the largest water systems (each of which regularly supplies drinking 
water to over 100,000 people) to assess their vulnerabilities and to 
develop or revise their emergency response plans.
      $17 million was allocated to the States to support their 
efforts to provide technical assistance and training to medium 
(supplying water to more than 50,000 but less than 100,000 people) and 
small (serving more than 3,300 but less than 50,000 people) systems in 
their vulnerability assessments and emergency response plans 
activities.
      A total of $1.5 million to 5 non-profit organizations, 
each of which will receive about $300,000, has recently been awarded. 
These organizations will provide no-cost training to State, tribal or 
local agencies on such activities as vulnerability assessments and 
emergency response plans. The focus of this training is to support 
vulnerability assessments and emergency response planning by some 7,500 
small systems.
      EPA staff is reviewing proposals submitted by nonprofit 
organizations in response to a Request for Proposal to provide training 
to the approximately 480 community water systems (each of which serves 
between 50,000 and 100,000 persons) in conducting their vulnerability 
assessments that are to be submitted to EPA by September 30, 2003 and 
in completing emergency response plans. ($1.7 million is available for 
award upon completion of this competitive process.)
      Nearly all of the $5 million in STAG (State and Tribal 
Assistance Grants) funds to help States coordinate their efforts with 
EPA and utilities to implement critical water infrastructure protection 
activities was awarded.

    In sum, about $80 million, or 90 percent, of the $88.8 million in 
the fiscal year 2002 supplemental appropriations for water security was 
directed to large, medium, and small systems' vulnerability assessments 
and emergency response plans. The remainder supported two major 
activities: 1) the development and implementation of the water 
information sharing and analysis center (WaterISAC), a web-based, 
password-protected, secure site that provides threat alerts and other 
security-related information to drinking water and wastewater 
utilities; and 2) research and technology development endeavors to more 
fully understand and address water security issues.

    Question 12. What funding is provided in the EPA's fiscal year 2004 
budget for vulnerability assessments and emergency response plans?
    Response. Because of the June 30, 2004 deadline for the submission 
of vulnerability assessments by an estimated 7,500 small drinking water 
systems, only 9 percent, or $2.3 million, in the fiscal year 04 
President's Budget request of $24.8 million in the Science and 
Technology appropriations account will be targeted to support to these 
systems for conducting vulnerability assessments and developing or 
revising emergency response plans. Major financial and technical 
support to all drinking water systems subject to the Public Health 
Security and Bioterrorism Preparedness and Response Act of 2002 
(Bioterrorism Act) is being funded by fiscal year 02 and fiscal year 03 
appropriations.
    With the fiscal year 04 requested funds, EPA will be focusing on 
the other two major provisions of the Bioterrorism Act, i.e., 
contaminant prevention, detection and response and supply disruption 
prevention, detection and response (section 402). Almost $20 million of 
the request will be targeted to: 1) activities that will advance the 
scientific and technical knowledge of microbial, chemical, and 
radiological contaminants for which little or no research and 
occurrence data are available; and 2) the identification of methods and 
means by which terrorist could disrupt the supply of safe drinking 
water by tampering, altering, or destroying systems' infrastructure.

    Question 13. What funding is currently available for physical 
security improvements at public water and wastewater facilities?
    Response. Many of the types of infrastructure improvements a water 
system would need to take to ensure security are eligible activities 
under the Drinking Water State Revolving Fund (DWSRF). The types of 
measures that could be funded include fencing, security cameras, secure 
chemical and fuel storage, backflow prevention devices and covering 
finished water storage reservoirs. Protection of drinking water sources 
may also be funded through the DWSRF set-asides. The first step in 
seeking assistance is to contact the State DWSRF representative.
    EPA has developed a fact sheet that identifies specific security 
measures that would be eligible through the DWSRF program. The fact 
sheet is available on our website at http://www.epa.gov/safewater/
dwsrf.html.
    Assistance to implement protection measures may also be available 
through Water and Wastewater Loan/Grant program of the U.S. Department 
of Agriculture's Rural Utilities Service. Water systems should contact 
their State SRF or Rural Development representatives to learn more 
about potential assistance.
CSO Long-Term Control Plan
    Question 14. Does the EPA believe that performing a CSO Long-Term 
Control Plan in a maximum of 15 years is reasonable and affordable? How 
does the EPA justify such an inflexible schedule?
    Response. The Wet Weather Quality Act of 2000, 33 U.S.C. Sec.  
402(q), requires EPA and the States to regulate CSOs in conformance 
with the EPA's 1994 Combined Sewer Overflow Control Policy (59 Fed. 
Reg. 18688). The CSO Policy calls for implementation of LTCPs ``as soon 
as practicable,'' and the NPDES authority should require ``compliance 
dates on the fastest practicable schedule for those activities directly 
related to meeting the requirements of the CWA.'' Decisions on 
implementation schedules are made on a case-by-case basis, and depend 
on such factors as the size of the community, the environmental impact 
of the CSO discharges, and the financial capability of the community.
    To guide decisions on LTCP scheduling, EPA published a document 
entitled Combined Sewer Overflows: Guidance for Financial Capability 
Assessment and Schedule Development (EPA 832-B-97-004, 1997). This 
guidance defines criteria that can be used to assess whether a CSO 
control program will pose a low, medium, or high financial burden on a 
community. The guidance also suggests general schedules based on these 
levels of burden. For communities facing a ``high burden'' the guidance 
suggests that implementation schedules of up to 15 years may be 
appropriate, while in ``unusually high burden'' situations an 
implementation schedule of up to 20 years may be appropriate.
Water Infrastructure Gap
    Question 15. Please illustrate exactly how your budget request 
would close the $21 billion gap between current capital funding and 
future capital needs.
    Response. The Gap Analysis estimates that about $381 billion in 
capital outlays will be required between 2000-2019. At current 
investment levels, $259 billion o that amount be covered. Growth in 
local revenues (user charges) of 3 percent per year in real terms, 
provides $101 billion in additional spending capacity, leaving a $21 
billion infrastructure gap.
    By extending Federal capitalization of the CWSRF program through 
2011 at $850 million per year, the President's proposal will 
significantly increase the CWSRF program's capability to fund projects 
in both the near term and in the long-run. Administration analyses 
using historical information indicate that, by extending Federal 
capitalization of the CWSRF program through 2011 at $850 million per 
year, the President's proposal is projected to increase SRF loan 
assistance by $21 billion in 20 years. By also utilizing other Federal, 
State and local sources of funding and improved management practices, 
we believe the projected infrastructure gap can be eliminated.
    At the same time, EPA, States and systems will pursue approaches 
for efficient, effective management of water and infrastructure assets 
to ensure that this investment achieves sustainable systems. These same 
innovative management practices can achieve significant cost savings in 
the industry.
    In addition to the Federal CWSRF program, there are a number of 
other Federal and State funding sources that are expected to help fund 
future infrastructure needs. These include USDA's Rural Utility Service 
(RUS) loans, HUD's Community Development Block Grant (CDBG) program, 
and non-Federal State clean water revolving loan fund programs.
Phase II Regulations and Local Communities
    Question 16. In Ohio, there are 216 townships that must comply with 
the Phase II Stormwater Management Regulations. These townships are 
concerned about the mandate laid down by the Federal Government for 
local governments to comply with the Clean Water Act. How does the 
EPA's budget help offset the financial burden placed on local 
communities who must comply with Phase II regulations?
    Response. Although EPA's budget request does not specifically 
address the Phase II Storm Water regulations, assistance can be 
provided through the Clean Water State Revolving Fund program. Ohio 
townships that must comply with the Phase II regulations can apply to 
the Ohio EPA for financial assistance through the State Revolving Fund 
loan program. The State of Ohio has also established Water Resource 
Restoration Sponsor Program. This program offers communities very low 
interest rate on loans for wastewater treatment plant improvements when 
communities also sponsor projects that protect or restore water 
resources.
Clean Water Act Compliance Costs
    Question 17. What is the responsibility of the Federal Government 
in helping local communities pay for the high costs of complying with 
the Clean Water Act?
    Response. The needs continue to change due to demographic 
pressures, aging infrastructure and new treatment requirements. 
Generally, it is the responsibility of local governments to pay for 
drinking water supply and wastewater disposal. However, Federal 
programs, including the Drinking Water SRF, established by the Safe 
Drinking Water Act (SDWA) and the Clean Water SRF established by the 
Clean Water Act (CWA) help local governments meet the costsof abiding 
by water quality standards and cleaning up waterways.
    The Federal Government and States work together through these 
programs to encourage investment in water and wastewater infrastructure 
that mitigates public health threats and creates sustainable water and 
wastewater treatment systems. Through Federal, State and local 
partnerships, EPA also supports affordable, cost-based rate structures 
and encourages technology innovation, smart water use, and watershed-
based decisionmaking. EPA is pursuing innovative ideas such as 
watershed-based trading and sustainable management systems. Together, 
these efforts will meet water and wastewater infrastructure needs and, 
more importantly, will help assure safe and clean water for the Nation.
Role of EPA's Science Advisor
    Question 18. As I mentioned in my opening remarks, I am interested 
in ensuring that the Agency relies on sound science in its 
decisionmaking process. How will the additional funding for science in 
fiscal year 2004 be used to improve research management and peer review 
practices at EPA?
    Response. The Agency has requested fiscal year 2004 resources to 
support the EPA Science Advisor, a function that was created in May 
2002. The Science Advisor is responsible for ensuring the availability 
and use of the best science to support Agency policies and decisions, 
as well as advising the EPA Administrator on science and technology 
issues and their relationship to Agency policies, procedures, and 
decisions. The Science Advisor provides leadership in ensuring that 
sound science plays a prominent role in all regulatory decisions by 
helping to ensure that regulations are interpreted and enforced in a 
manner consistent with the science that informs them. This position is 
intended to strengthen EPA's overall scientific performance. Another, 
critical mechanism for ensuring sound science at EPA is the Agency's 
policy for peer reviewing scientific and technical work products used 
to inform Agency decisions. The Science Advisor, as chair of the 
Science Policy Council, plays a leading role in implementing EPA's peer 
review policy. In his March 5, 2003 testimony before the Committee on 
Transportation and Infrastructure, EPA's Science Advisor, Paul Gilman, 
stated, ``nearly 90 percent of our scientific and technical work 
products receive internal or external peer review.'' EPA is currently 
in the process of reviewing and addressing a recent finding by the 
Inspector General that ``[t]he critical science supporting the 
[agency's] rules was often not independently peer reviewed. 
Consequently, the quality of some science remains unknown.'' (EPA OIG, 
Science to Support Rulemaking, at ii, November 15, 2002.) In general, 
the Agency believes that the IG's report is a reflection of the past, 
rather than current, state of peer review at EPA today. Even rules 
issued in the late 1990's would have used scientific products developed 
before EPA's peer review guidance was completed in 1998. (For 
additional steps the Agency has taken in the past with regard to its 
peer review policies and practices, please see the Attachment to this 
response.)
    Specific responsibilities of the Science Advisor include:

      Assisting in the implementation of the recommendations of 
the Administrator's Regulatory Development Task Force Review as they 
relate to the use of science.
      Reviewing policies and procedures relating to the 
operation of the Science Advisory Board (SAB) and making 
recommendations for improvement.
      Reviewing the interactions between the Regional 
Laboratories and the Office of Research and Development and making 
recommendations for improvements to these relationships as appropriate.
      Reviewing the activities across the Agency relating to 
the development and use of measurement techniques and making 
recommendations for any improvements that may be identified.
      Ensuring consistent cross-Agency application of strategic 
planning for research and use of science.
      Guiding the recently enhanced efforts of the Council on 
Regulatory Environmental Modeling (CREM).
      Chairing the Agency's Science Policy Council.

    Question 19. While visiting the Environmental Protection Agency's 
(EPA) newly created National Homeland Security Research Center in 
Cincinnati, I had the pleasure of meeting Dr. Paul Gilman, who serves 
as the Assistant Administrator of Research and Development and as EPA's 
Science Advisor. I was impressed with his credentials as a scientist. 
What will his role be in EPA's decision and regulatory making process?
    Response. One of Dr. Gilman's key roles is to ensure that the 
science used in EPA policies and decisions is of the highest quality 
and is used in a manner appropriate to the policy or decision it 
informs. Upon arriving at EPA, Administrator Whitman commissioned a 
task force to identify ways to strengthen the scientific and economic 
bases of EPA's policies and decisions. In response to the task force's 
recommendations, the Administrator asked Dr. Gilman to increase the 
role of EPA's scientists in the development of Agency policies and 
regulations, and he has succeeded in doing so: the number of laboratory 
engineers and scientists actively engaged at any one time in providing 
scientific input into EPA's regulations has grown from about 150 in 
2000 to over 300 in 2003. Dr. Gilman also played a key role in 
designing the Agency's Information Quality Guidelines to ensure that 
all scientific and technical information disseminated by EPA meets high 
standards for quality.
    Dr. Gilman is also EPA's leader in implementing the Agency's policy 
on peer review of EPA's scientific and technical work products. Nearly 
90 percent of EPA's scientific and technical work products receive 
internal or external peer review (the remaining 10 percent were 
products that were deemed, usually because of their repetitive or 
routine nature, not to be candidates for peer review), and about 80 
percent of those are submitted for external review. As he testified 
before the House Committee on Transportation and Infrastructure, 
Subcommittee on Water Resources and the Environment, on March 5 of this 
year, EPA's challenge for the future is to continue the significant 
progress it has achieved to date and, not being content with the status 
quo, to look for ways to enhance the use of peer review as a tool for 
ensuring that EPA's decisions are supported by a firm foundation of 
scientific and technical information. In his March 5, 2003 testimony 
before the Committee on Transportation and Infrastructure, EPA's 
Science Advisor, Paul Gilman, stated, ``nearly 90 percent of our 
scientific and technical work products receive internal or external 
peer review.'' EPA is currently in the process of reviewing and 
addressing a recent finding by the Inspector General that ``[t]he 
critical science supporting the [agency's] rules was often not 
independently peer reviewed. Consequently, the quality of some science 
remains unknown.'' (EPA OIG, Science to Support Rulemaking, at ii, 
November 15, 2002.) In general, the Agency believes that the IG's 
report is a reflection of the past, rather than current, state of peer 
review at EPA today. Even rules issued in the late 1990's would have 
used scientific products developed before EPA's peer review guidance 
was completed in 1998. (For additional steps the Agency has taken in 
the past with regard to its peer review policies and practices, please 
see the Attachment to this response.) As Science Advisor, Dr. Gilman 
chairs EPA's Science Policy Council (SPC), a cross-agency committee of 
senior managers charged with developing policies that guide Agency 
decisionmakers in their use of scientific and technical information. In 
recognition of the rapid advances in the field of genomics since 
initial sequencing of the human genome, the SPC has developed an 
interim policy on the use of genomics data as supporting information 
for Agency assessment and regulatory purposes. The SPC has also 
reconstituted the Council on Regulatory Environmental Modeling, which 
among other things is developing guidance for developing and using 
environmental models. Because sound decisions need to be based on sound 
data, EPA is also establishing a Forum on Environmental Measurements to 
promote consistency and consensus within the Agency on measurement 
issues.
    All of Dr. Gilman's efforts--enhancing the use of science in 
decisionmaking, implementing EPA's peer review policy, and developing 
agency-wide science policies--are crucial to making sure that the 
policies and regulations issued by EPA are informed by scientific 
information of the highest quality. Under Dr. Gilman's leadership and 
with the Administrator's strong support for his leadership roles, 
science has an increasingly prominent place in carrying out EPA's 
mission of protecting public health and safeguarding the natural 
environment.
                               attachment
    From ``The State of Sound Science at the U.S. Environmental 
Protection Agency'' (EPA/600/R-03/054, June 2003), (http://www.epa.gov/
ord/htm/soundscience-062603.pdf) pages 4-5:

    ``Consistent agency-wide application of peer review has been an EPA 
priority for many years. Since issuing its peer review policy in 1993, 
EPA has taken several major steps to support and strengthen the policy. 
But proof of a policy's value lies in its implementation, and here also 
EPA has been very active to ensure that its peer review policy is not 
only understood across the Agency, but is applied rigorously across 
EPA's program and regional offices.
    One example is the external peer review of EPA's research 
strategies and plans by the SAB and others. These reviews provide 
critical, early input to the Agency at the planning stage as it 
establishesits research priorities. A second example is the external 
peer review of EPA's research efforts bythe National Research Council, 
the EPA Office of Research and Development's Board of 
ScientificCounselors and others. In March 2003, the Human Studies 
Division of EPA's National Health andEnvironmental Effects Research 
Laboratory (NHEERL) underwent a 3-day peer review of itsepidemiological 
and clinical research. Each of NHEERL's nine divisions conducts such a 
detailed review every 4 years, with a mid-cycle review after 2 years. 
Also, all the grants awarded by the STAR program are selected through a 
rigorous peer review process, whereby panels of independent researchers 
review all the proposals for their scientific quality.
    In response to the 2001 General Accounting Office (GAO) report 
entitled EPA's Science Advisory Board Panels: Improved Policies and 
Procedures Needed to Ensure Independence and Balance, the SAB has taken 
several steps to address potential conflict-of-interest concerns. These 
include internal procedural actions within EPA's SAB Staff Office, as 
well as the new conflict-of-interest form developed by the SAB (and 
approved by the Office of Government Ethics) that is required to be 
submitted by all prospective panel members; this same, new conflict-of-
interest form is now being used by EPA's other review bodies that 
utilize Special Government Employees, such as the SAP. These new 
conflict-of-interest procedures complement existing procedures used for 
all extramural peer reviews managed by contracts.
    Internal conflict of interest--making sure that those EPA employees 
who manage the peer review process are not inappropriately influenced 
by Agency decisionmakers who will determine how the work product 
informs the decision--is also an issue EPA has considered and 
addressed. In its December 2000 2d edition of the Peer Review Handbook, 
EPA included supplemental guidance to address this issue. The revised 
handbook, among other things, clarifies the importance of strictly 
separating the management of scientific work products from the 
management of the peer review of those work products.''
National Homeland Security Research Center
    Question 20. At the EPA's new National Homeland Security Research 
Center in Cincinnati, I was briefed on EPA's research initiatives in 
support of Homeland Security. Can you share with the committee what 
your strategy is in support of Homeland Security, the role of research 
and how you are coordinating with the Department of Homeland Security?
    Response. The EPA National Homeland Security Research Center 
(NHSRC) was formed in October 2002 to enable coordinated development of 
information and technologies needed to protect buildings and public 
water supplies from chemical and biological terrorist attacks. The 
Center employs some of EPA's most experienced scientists and engineers 
from across the United States and is headquartered at the EPA's Andrew 
W. Breidenbach Environmental Research Center in Cincinnati.
    The goal of the research is to rapidly develop tools, technologies 
and guidance for use by water system authorities, building owners, 
public officials and emergency responders to prepare for and respond to 
potential attacks. The research program is divided into the following 
areas:

      technologies to rapidly detect and warn of chemical or 
biological attacks;
      methods to contain contaminants following attack;
      development of cost-effective decontamination 
technologies;
      development of tools to enable rapid assessment of health 
risk resulting from attacks; and
      performance verification of commercially available 
homeland security technologies.

    A significant portion of this research is being conducted in direct 
collaboration with other Federal agencies including the Department of 
Homeland Security (DHS), Department of Defense, Department of Energy 
and the Centers for Disease Control and Prevention. Six coordination 
meetings have been held between DHS and the NHSRC since January, 
including a full-day cross briefing with senior leadership of the 
Science and Technology Directorate of DHS. Additional briefings are 
scheduled to discuss progress on specific high interest research 
studies. As a result of the significant interaction with DHS, we are 
confident that EPA's research effort is appropriately focused as a 
unique and key component of the overall national homeland security 
strategy.
    As part of our overall homeland security strategy, the 
Administrator also created a permanent EPA Office of Homeland Security 
(OHS) to lead and coordinate the development of homeland security 
activities across EPA. The Office serves as the primary liaison on 
matters related to homeland security between EPA and the Department of 
Homeland Security, other Federal agencies, and external organizations; 
and works with other EPA programs to develop enhanced systems for 
managing classified information.
Water Systems Vulnerability Assessment and Emergency Response Plans
    Question 21. Has the EPA estimated how much it would cost for water 
systems to perform vulnerability assessments and emergency response 
plans?
    Response. An Information Collection Request for the approximately 
9,000 community water systems subject to the requirements of the Public 
Health Security and Bioterrorism Preparedness and Response Act of 2002. 
When this information has been compiled, the results will be sent to 
you.
Cost of Water Systems Physical Security Improvements
    Question 22. Is there an estimate on how much is required to make 
the physical security improvements necessary to protect our water 
infrastructure facilities? Is the EPA's budget adequate to meet these 
needs?
    Response. Under the 1996 Amendments to the Safe Drinking Water Act, 
the Agency is required to undertake an infrastructure needs survey and 
submit such survey to the Congress every 4 years. This survey 
encompasses all aspects of infrastructure and informs our calculations 
for determining the State allocation for the Drinking Water State 
Revolving Fund (DWSRF) in the annual budget process. The next survey, 
which is due to the Congress in February 2005, does include a component 
on security improvements.
    EPA intends to work closely with the States and systems in using 
the DWSRF for such purposes.
Water Issues
    Question 23. What can the EPA do in regard to the following issues? 
First, Wet Weather Water Quality Standards for receiving streams are 
needed to realistically determine the impacts of CSO issues. Current 
water quality standards were developed for dry weather application and 
were not intended to address wet weather events. Second, reasonable and 
sincere re-evaluations of ``use designation'' are not being conducted 
by the EPA. Third, urban stream habitat is not adequately addressed in 
water quality standards.
    Response. EPA has developed guidance and is working with States 
which have combined sewer overflow (CSO) communities to integrate the 
development of affordable, well-designed and operated CSO control 
programs, implementation of high-priority controls, and water quality 
standards reviews. The CSO Control Policy published on April 11, 1994 
(59 FR 18688) provides that ``development of the long-term plan should 
be coordinated with the review and appropriate revision of water 
quality standards and implementation procedures on CSO impacted 
receiving waters to ensure that the long-term controls will be 
sufficient to meet water quality standards.'' The Wet Weather Water 
Quality Act required, among other things, that permits, orders and 
decrees which address discharges from a CSO be consistent with the CSO 
Control Policy and that EPA publish by July 31, 2001 ``Guidance: 
Coordinating CSO Long-term Planning With Water Quality Standards 
Reviews'' (EPA-833-R-01-002, July 31, 2001).
    The Guidance outlines processes to assist CSO communities and 
States integrate the development of the CSO control plans with the 
review and the evaluation of water quality standards, including the 
designated uses for the CSO receiving waters. The implementation of CSO 
controls developed as part of a well designated and operated long term 
control plan may lead to the determination that a water body has the 
potential of supporting improved aquatic life. Under this circumstance, 
States would upgrade their designated aquatic life use for the water 
body. Alternatively, implementation of a well-designated and operated 
CSO long term control program may not necessarily ensure the attainment 
of water quality standards within the CSO receiving waters. Where 
existing standards cannot be met, CSO communities, States and EPA can 
use a process described in the Guidance to reach early agreement on the 
data and analyses sufficient to support both the long term control plan 
and the water quality standards review. Where available information 
demonstrates that water quality standards revisions are appropriate, 
EPA expects that States will make revisions to water quality standards 
which maintain the highest attainable use while enabling communities to 
implement a cost-effective control program that complies with permit 
requirements providing to the attainment of water quality standards.
                                 ______
                                 
    Responses of Administrator Christine Todd Whitman to Additional 
                    Questions from Senator Jeffords
Water Infrastructure
    Question 1. In your opening statement you said that ``core water 
programs'' enjoyed a budget request increase of $55 million for a total 
of $470 million. This characterization is not reflective of the $500 
million drop in funding requests for the Clean Water SRF. Is the Clean 
Water SRF a ``core water program''?
    Response. States are currently struggling with budget pressures in 
their water quality and drinking water programs and are facing 
expanding workloads and challenges to their programs (e.g., permit 
backlogs, TMDL court challenges, and petitions to withdraw State 
program authorizations). In recognition of the impact of budget 
pressures on implementation of core water programs and resulting 
challenges States and tribes are facing, EPA is requesting a $55 
million increase focused on water quality standards, water quality 
monitoring and assessment, total maximum daily loads (TMDLs), national 
pollutant discharge elimination system permits (NPDES), drinking water 
implementation, and oceans and coastal protection. Most of this 
increase ($32 million) would be provided to States and Tribes through 
Clean Water Act Section 106 Grants and public water systems supervision 
(PWSS) Grants. The remaining increase ($23 million) will help EPA 
provide guidance and technical assistance to States and Tribes in each 
of the core program areas.
    In addition to the requested increase in the core water programs, 
the Administration plans to provide an additional $4.4 billion to the 
Clean Water SRF by extending funding through 2011. This increase in 
commitment is expected to increase the long-term target revolving level 
of the Clean Water SRF from $2 billion per year to $2.8 billion per 
year, a 40 percent increase.

    Question 2. What method does EPA use to determine affordability and 
what is the basis for that method?
    Response. EPA's national-level affordability criteria consist of 
two major components: an expenditure baseline and an affordability 
threshold. The expenditure baseline (derived from annual median 
household water bills) is subtracted from the affordability threshold 
(a share of median household income (MHI) that EPA believes to be a 
reasonable upper limit for these water bills) to determine the 
expenditure margin. The expenditure margin is the maximum increase in 
household water bills that can be imposed by treatment and still be 
considered affordable. EPA currently uses an affordability threshold of 
2.5 percent of MHI. EPA compares projected compliance costs for the 
median household within a particular small system size category to the 
available expenditure margin to make the affordable technology 
determinations and derives available expenditure margins separately for 
each of the three specified small-system size categories ( i.e., 25-500 
served, 501-3,300 served, and 3,301-10,000 served). Under the Safe 
Drinking Water Act (SDWA), EPA does not make site-specific 
affordability determinations for systems within a size category.
    MHI was selected as the metric for the affordability criteria so 
that EPA could base its evaluation given a ``typical'' set of 
circumstances rather than a worst-case scenario. The value of 2.5 
percent for this metric reflects a comparison of the cost of public 
water supplies for households given other household expenditures and 
risk-averting behavior. National expenditure estimates were derived to 
illustrate the allocation of household income across a range of general 
household expenditure levels. An initial range of 1.5 to 3 percent of 
the median household income (MHI) for the affordability threshold was 
based on comparative household expenditures on other utilities, such as 
telephone services and fuel. The selection of 2.5 percent from this 
range was based primarily upon the costs of risk-reduction activities. 
Costs were derived for risk-reduction activities that could be 
conducted at the household-level in lieu of treatment being performed 
by the water utility. These risk-reduction activities included point-
of-use and point-of-entry treatment options and home delivery of 
bottled water. The March 2002 Report to Congress on small system 
arsenic implementation contains more details on the derivation and 
basis of the national-level affordability criteria.

    Question 3. The President requested $850 million for the Safe 
Drinking Water State Revolving Loan Fund. Several other key drinking 
water programs that provide assistance to small, rural communities were 
cut in the President's Budget. I am aware that OMB was working on a 
governmentwide study of the different programs that provide drinking 
water system assistance to small, rural communities. To your knowledge, 
has that review been completed? If so, what was the result? Is that 
result reflected in the President's Budget?
    Response. In June 2002, at OMB's request, EPA, along with the 
Department of Agriculture's Rural Utilities Service (RUS), the 
Department of the Interior's Bureau of Reclamation (BOR), and the 
Department of Health and Human Service's Indian Health Service (IHS), 
worked collectively and individually with OMB to develop and test the 
applicability of ``common measures'' of the effectiveness of Federal 
rural water programs.
    A summary of the study results appears in the Department of the 
Interior's portion of the fiscal year 2004 President's Budget. In the 
President's Budget, OMB notes that the four agencies differ 
significantly in terms of how they provide rural water assistance: The 
BOR and IHS programs are primarily construction programs, whereas EPA 
and RUS focus on infrastructure finance. OMB also notes significant 
geographic and socio-economic differences in the four agencies' 
respective service areas and service populations. Given OMB's overall 
conclusion--that there is general overlap in the missions of the four 
programs--the President's Budget also describes the Administration's 
commitment to do additional analysis as the basis for streamlining 
these programs over the next year.

    Question 4. One concept that has seemed to garner general support 
from stakeholders is the creation of a dedicated source of funding for 
State SRFs. This concept, provided that it included a revenue source 
that was agreeable to all parties involved, could have the potential to 
help address our current water infrastructure funding gap. What is 
EPA's position on a ``water pollution trust fund?''
    Response. EPA has not taken a position on the creation of a ``trust 
fund,'' supported by special, dedicated, Federal, State and/or local 
fees, to finance water and wastewater infrastructure through the State 
Revolving Fund (SRF) programs. Unfortunately, stakeholders may be 
uninformed about what a ``trust fund'' means in the context of 
dedicated Federal revenues. First of all, the assets of the fund would 
belong to the Federal Government, and as trustee, the Federal 
Government can make unilateral changes to the terms and conditions of 
the ``trust.'' Second, a new fund for water pollution may run into 
budget scoring difficulties. For these reasons, we believe that 
developing consensus on an effective dedicated funding source would be 
difficult.

    Question 5. Is an integrated priority list including both point and 
nonpoint sources of pollution a viable tool to help States direct Clean 
Water SRF funds to those projects that will have the greatest impact on 
water quality?
    Response. Integrated planning and priority systems are more 
effective planning mechanisms than the simple ranking of proposed 
projects that the Clean Water Act requires. Integrated planning and 
priority setting systems help States use their water quality data to 
inform SRF project rankings and guide funding decisions. These systems 
help States rank point, nonpoint source and, where applicable, estuary 
projects, and they help to ensure that funding goes to each State's 
highest environmental priority projects. EPA supports State use of 
CWSRF funds for high priority water quality projects, and we provide 
guidance and encouragement to States that voluntarily develop and use 
integrated planning and priority setting systems.

    Question 6. I have read and heard widespread reports of a pending 
recommendation from the National Drinking Water Advisory Council 
(NDWAC) recommending an income-assistance program to address 
affordability issues related to rising water rates. When will this 
report be released?
    Response. In 2002, the National Drinking Water Advisory Council 
(NDWAC) formed a smaller work group to respond to the charge questions 
on the national-level affordability criteria. This 18 member work group 
included representatives of small and large water utilities, small 
system advocacy and technical assistance organizations, academic 
experts and consultants, States and local governments, tribes, and 
environmental and consumer groups. Work group members held five 
meetings between September 2002 and January 2003, and recently 
delivered a report of their affordability recommendations to the full 
NDWAC.
    In May 2003 the full committee of the NDWAC discussed the work 
group's recommendations on affordability, evaluated the final report, 
and considered changes. EPA anticipates receiving the final 
affordability report and releasing it to the public by July 2003.
Water Quality
    Question 7. One of the most important components of any water 
quality program is water quality monitoring. What is EPA doing to 
improve the quality and quantity of water quality measurements?
    Response. EPA is working to enhance the credibility of water 
quality monitoring data and information so that it drives better 
management decisions at all levels--nationwide, regional, State and 
tribal, and watershed. We want to provide to the public better 
information on how clean our waters are and whether the money we are 
spending to improve water quality is being used effectively.
    The Agency is building on previous efforts, including the work of 
the Interagency Task Force on Monitoring; collaborating with existing 
monitoring efforts such as those of U.S. Geological Survey, the Fish 
and Wildlife Service, and the National Oceanic and Atmospheric 
Administration; and, of course, working with State agencies in these 
efforts. EPA is taking into account the recommendations on water 
quality monitoring made in numerous program reviews done by the General 
Accounting Office, Inspector General, and National Research Council, 
etc.
    Activities to improve water quality monitoring are focused in four 
main areas: improving monitoring designs for all geographic scales and 
for different water body types; improving State and tribal monitoring 
programs, maximizing use of all data and information; expanding 
accessibility and use of the data; and improving communications about 
the value and results of monitoring data.
    The fiscal year 2003 appropriations for EPA contained $4 million 
for grants to interested States to establish a long-term ambient 
monitoring and assessment framework at relevant geographic scales. 
These funds will help EPA and the States to design a monitoring network 
that will provide credible data and information to answer the 
questions: how clean is our water, and is our being money being spent 
in the most effective manner.
SWANCC Decision
    Question 8. How much in funding has EPA allocated for the 
rulemaking related to the definition of waters of the United States?
    Response. Agency program offices have only recently received their 
budget figures and we are still making intra-agency allocation of funds 
for particular projects. Additionally, the comment period for the ANPRM 
did not close until April 16, and we are just now getting underway with 
the process of summarizing and analyzing the comments. That process 
will help inform us as to what issues may need to be addressed through 
proposed rulemaking, which in turn will affect how much funding would 
be needed.

    Question 9. In the Advanced Notice of Proposed Rulemaking on the 
Clean Water Act Regulatory Definition of ``Waters of the United States, 
EPA and the Corps explicitly ask for comment in section five ``as to 
whether any other revisions are needed to the existing regulations on 
which waters are jurisdictional under the CWA.'' The presence of this 
request for information clearly expands the scope of your Advanced 
Notice of Proposed Rulemaking to include all waters under the CWA. The 
reason stated for this additional solicitation was that is was 
``boilerplate'' language included in ANPRMs and that the Agency would 
receive comments outside the scope of the solicitation, therefore 
justifying the expanded request. In order to verify that this expanded 
solicitation is standard for your agency's ANPRMs, could you please 
provide copies of EPA-issued ANPRMs from the last 5 years with examples 
of this language noted in each.
    Response. ANPRMs are an extra step, not required by the 
Administrative Procedure Act, to identify key issues and obtain early 
public input. They often cast a broad net to ensure all relevant issues 
are identified early on for agency consideration. As was the case with 
the ``Waters of the United States'' notice, ANPRMs are frequently 
drafted so as to solicit public input not just on some specifically 
identified core issues, but also explicitly invite comments more 
generally on any other related issues the public wishes to call to our 
attention. Set out below are some examples from EPA's most recent 
Regulatory Agenda:
            MTBE ANPRM--65 FR 16093 (3/24/00), Pg 16096
    ``The remainder of this ANPRM outlines the major elements of the 
problem and its potential solution. EPA invites comment from all 
interested parties on these and any other matters relevant to 
addressing the risk of MTBE to the nation's drinking water resources.'' 
Pg 16106
            ``VI. Specific Requests for Comment, Data, and Information
    Interested persons are invited to comment on any issue raised in 
this ANPRM. The Agency is particularly interested in receiving 
additional information and/or comments addressing the following 
issues:''
            Mercury bearing waste ANPRM--64 FR 28949 (5/28/99), Pg 
                    28962
    ``D. Request for Comment
    The Agency seeks comments on the viability and parameters of these 
alternative technologies and any other technologies not specifically 
mentioned in this ANPRM.''
            Water Quality Standards ANPRM--63 FR 36741 (7/7/98), Pg 
                    36742
    ``This ANPRM identifies specific issues on which EPA solicits 
comment. In addition to the specific issues on which EPA solicits 
comments, EPA is interested in comments on any other aspects of the 
program.'' Pg 36748
    ``While the following discussion describes specific areas and 
issues for public review, the public is welcome to comment on any 
aspect of the water quality standards program.''

    Question 10. The joint EPA and Corps guidance regarding the Supreme 
Court's decision in the SWANCC case has raised concerns. The guidance 
states that where the sole basis for asserting CWA jurisdiction is the 
actual or potential use of the waters as habitat for migratory birds 
that cross State lines in their migration, the EPA and the Corps are 
precluded from asserting CWA jurisdiction. However, the guidance states 
that neither agency will assert jurisdiction over isolated wetlands 
that are both intrastate and non-navigable where the sole basis 
available for asserting CWA jurisdiction rests on any of the factors 
listed in the ``Migratory Bird Rule''.
    The ``Migratory Bird Rule'' contains four factors to consider when 
asserting jurisdiction over intrastate waters:

    ``a. Which are or would be used as habitat by birds protected by 
    Migratory Bird Treaties; or
    ``b. Which are or would be used as habitat by other migratory birds 
    which cross State lines; or
    ``c. Which are or would be used as habitat for endangered species; 
    or
    ``d. Used to irrigate crops sold in interstate commerce.''

    Could you please provide the Agencies' rationale for taking the 
entire ``Migratory Bird Rule'' out of the Agencies' jurisdictions and 
why the ANPRM did not solicit comments on the scope of the ``Migratory 
Bird Rule''.
    Response. At the outset, we wish to note that the so-called 
``Migratory Bird Rule'' is actually preamble language setting out some 
illustrative examples of interstate commerce factors rather than being 
an actual rule itself. See, 51 Fed. Reg. 41217 (Nov. 13, 1986); 53 Fed. 
Reg. 20765 (June 6, 1988). The January 2003 guidance provides that 
neither agency will assert Clean Water Act jurisdiction over isolated 
intrastate nonnavigable waters solely on the basis of the factors 
listed in that preamble language. The January 2003 guidance sets out 
the rationale for this. It first discusses at some length the logic and 
reasoning of SWANCC and then explains: ``SWANCC calls into question 
whether CWA jurisdiction could now be predicated on the other factors 
of the Migratory Bird Rule.'' 68 Fed.Reg. 1991, 1995-1996 (January 15, 
2003). We also wish to note the ANPRM encompasses comment on the 
relevance of factors such as those listed in the ``Migratory Bird 
Rule.'' The very first question posed by the ANPRM asks not just about 
the jurisdictional factors contained in the actual ``(a)(3)'' 
regulations, but also specifically asks whether ``any other factors 
provide a basis for determining CWA jurisdiction over isolated, 
intrastate, non-navigable waters.'' The factors in the ``Migratory Bird 
Rule'' are embraced by that language; in addition, as your earlier 
question indicates, the agencies also sought comment ore generally on 
other relevant jurisdictional issues, which again would include 
``Migratory Bird Rule'' factors.

    Question 11. In addition, the guidance directs field staff to seek 
formal project-specific Headquarters approval prior to asserting 
jurisdiction over isolated waters that are both intrastate and non-
navigable, including permitting and enforcement actions. This direction 
is troubling because; (1) it gives complete discretion to the field 
staff to decide whether or not to regulate any isolated, intrastate 
non-navigable water; and (2) creates an additional step that could add 
unnecessary delay in permitting and enforcement.
    Could you please provide information on the number of permits that 
will be effected by this guidance, an estimate of the number of future 
permits that will be effected during the rulemaking process, and the 
estimated time it will take for a permitting or enforcement action 
subject to the new Headquarters approval, to go through the process, 
and a description of the procedures that field staff will use when 
seeking Headquarters approval?
    Response. It is not feasible at this point to accurately predict 
the number of permits affected by the guidance provisions for project-
specific Headquarters approval. While no formal procedures have been 
separately issued, the field may raise issues consistent with existing 
practices for jurisdictional matters. We believe the number will be 
low, however, for at least two reasons. First, the process involves 
only those waters that are intrastate, and isolated, and non-navigable. 
Actions on waters that do not meet all three of these criteria do not 
require Headquarters approval. Second, based on our experience during 
the 2 years between the SWANCC decision and issuance of the guidance, 
we do not anticipate any future volume to be such that Headquarters 
review and approval would result in undue delays.
    We also note that this guidance provision does not give discretion 
to field staff to decide whether or not to regulate any isolated, 
intrastate non-navigable water. Rather, it is intended to ensure that 
field staff make such decisions in a consistent manner across 
districts, as well as to provide valuable information to headquarters 
about real world situations involving such waters, whose jurisdictional 
status has been called into question by the Court's decision.

    Question 12. In your opening statement, you stated that ``tens of 
thousands of acres'' of wetlands could potentially fall outside the 
protection of the Clean Water Act. EPA has not to date formally 
produced any information quantifying how many acres of wetlands would 
fall outside of Clean Water Act jurisdiction as a result of the SWANCC 
decision. What is EPA's estimate on the number of acres that will fall 
out of the Clean Water Act's jurisdiction and what information did EPA 
use to calculate this number?
    Response. At present, there is no definitive national estimate 
quantifying wetland acreage potentially no longer jurisdictional under 
the CWA in light of SWANCC. One of the purposes of the ANPRM was to 
help us in our estimations by soliciting information, data, or studies 
from the public, scientific community, and Federal and State agencies 
on the extent of potential SWANCC-related impacts to aquatic resources. 
One existing government estimate of geographically isolated wetlands 
may be found in the U.S. Fish and Wildlife Report titled ``Isolated 
Wetlands: A Preliminary Assessment of Their Status and Characteristics 
in Selected Areas of the United States.'' That study, in essence, 
identifies for the selected sites those wetlands which appear to be 
geographically isolated. However, not all of these would necessarily be 
non-jurisdictional under SWANCC, nor are they necessarily subject to 
conversion even if non-jurisdictional. One way of looking at the issue 
using presently available information is to consider Corps of Engineers 
data for the section 404 permitting program. That data indicates that 
before SWANCC, wetlands losses prior to mitigation under individual and 
general permits were in the range of 12,000 to 39,000 acres per year 
for fiscal year 1998 through fiscal year 2000. (See e.g., U.S. Army 
Corps of Engineers July 2001 Draft nationwide Permit Programmatic 
Environmental Impact Statement, pg. 4-10, Figure 4.2-1). Only some 
percentage of those permitted losses would now be non-jurisdictional in 
light of SWANCC. We are working to develop more refined estimates and 
anticipate the information gained from public responses to the ANPRM 
will help us in these efforts.
Stormwater Phase II
    Question 13. On December 30, 2002, more than 3 years after the 
final storm water phase II rule was published, the EPA proposed the 
extension of the deadline for compliance with this regulation by the 
oil and gas industry. Your proposal cites new information from DOE as 
the impetus for this new review. The Department of Energy has collected 
this data since 1978. Please explain your characterization of this 
information as new.
    Response. When EPA developed the Economic Analysis for the Phase II 
rule, the information obtained for the analysis showed that most sites 
were either over five acres, and therefore already regulated, or less 
than one acre, and therefore would not be covered by the construction 
permitting requirements of the rule. As the time for permit 
applications for construction disturbing one to five acres drew nearer, 
we started receiving letters from associations representing the 
independent drillers. We also met with members of these groups. They 
were unanimous in telling us that most of their drill sites disturb 
between one and five acres. EPA talked to several States and looked for 
information to verify what we were hearing from the industry. The 
States with oil and gas activity and the Energy Information 
Administration (EIA) confirmed what we were being told. We referred to 
this information as new because it was new to EPA.

    Question 14. Your proposal cites 30,000 oil and gas starts per year 
as the new information requiring an impact evaluation. Why did you 
choose to use an average of the number of oil and gas starts in 2000 
through 2002 as the number of oil and gas starts per year?
    Response. We actually took several different averages. Depending on 
which years are averaged, the number of drill sites varies. Averaging 
all the years of data available results in an average of over 40,000 
sites per year. Our decision did not depend on the specific number of 
30,000, but rather on the fact that the number of sites was 
significantly more than what we had assumed during development of the 
original Phase II rule (12/8/1999). EPA simply used 30,000 as a number 
that was illustrative of the potential impact. This was also the number 
of sites mentioned by industry and States as the expected number of new 
sites for the next few years.

    Question 15. Has EPA reviewed the EIA data collection and analysis 
procedures to determine if the data you have chosen to use to justify 
your extension of the applicability of the storm water phase II 
regulations for the oil and gas industry is valid? If so, what did you 
conclude? If not, why not?
    Response. No, we did not believe this was necessary. As noted 
above, the figures generated by the EIA data collection and analysis 
were used to demonstrate the potential impact. Since the quality of the 
data was commensurate with our use, the data was deemed appropriate.

    Question 16. This data also includes both onshore and offshore 
wells. Please explain why you have included offshore wells as part of 
justification for changes to a regulation dealing with storm water 
runoff?
    Response. We were not originally aware that off-shore sites were 
included, since the EIA data does not make this distinction. When we 
checked on this issue, we found that offshore wells are included, but 
they are a very small part of the total. In the past decade, 400 to 900 
wells per year were completed in Federal offshore waters. The Minerals 
Management Services (MMS) of the U. S. Department of Interior is 
responsible for leasing development blocks and managing petroleum 
royalty revenues derived from oil & gas production on the U.S. offshore 
waters. The MMS reports that a total of 904 oil & gas development wells 
were drilled on Federal offshore leases in 2000. Based upon historical 
data, 95 percent of all oil and gas wells drilled each year in the 
United States are located onshore.

    Question 17. In its Information Quality Guidelines, EPA states that 
``There are many tools that the Agency uses such as the Quality System, 
review by senior management, peer review process, communications 
product review process, the web guide, and the error correction 
process.'' EPA also indicates that it seeks input from experts and the 
general public, and that it consults with groups such as the Science 
Advisory Board and the Science Advisory Panel. Which of these tools 
were used in preparing the December 20, 2002 proposed regulation 
regarding the extension of the deadline for the phase II storm water 
program for the oil and gas industry?
    Response. As with all our rules, the December 20, 2002 proposed 
regulation was available for public comment and we did not receive any 
comments questioning the 30,000 number. As mentioned above, we sought 
input from the experts, the States that regulate the oil and gas 
industry, various groups that represent the industry, and the branch of 
the US government that collects data about the industry. The rule was 
also reviewed by senior management. EPA does not believe that 
consulting with the Science Advisory Board or the Science Advisory 
Panel would have been appropriate for this type of regulation.

    Question 18. The EPA Information Quality Guidelines contain a 
section entitled, ``Does EPA Ensure and Maximize the Quality of 
Information from External Sources?'' It indicates that since 1998, the 
use of environmental data collected by others or for other purposes has 
been within the scope of the Agency's Quality System. Please explain 
how the data used by EPA to justify the December 20, 2002 proposed 
regulation regarding storm water phase II met the standards of this 
system before being published in the Federal Register.
    Response. The information used in this rulemaking was a count of an 
expected number of oil and gas starts. As explained above, EPA made an 
assumption in 1999 that was later called into question by States and 
the oil and gas industry. This new information was validated by data 
from DOE and was not challenged during the rule's public comment 
period. Consistent with EPA's Quality system, the quality of the data 
was deemed appropriate for its use in this rulemaking.

    Question 19. On November 14, 2002 I sent you a letter with 30 of my 
colleagues urging a quick resolution to the question of whether or not 
communities covered by the storm water phase II regulation can continue 
to use Clean Water Act section 319 funds. The 107th Congress passed 
legislation allowing these communities to use section 319 funds for 
fiscal year 2003. Should this change be made permanent?
    Response. We are still reviewing this issue and have no 
recommendation at this time.

    Question 20. On January 23, 2003, you sent us a letter indicating 
that you are continuing your review of this issue. How long has this 
review been underway?
    No response.

    Question 21. The storm water phase II regulations went into effect 
on March 10, 2003. They have been in place since 1999. Do you plan to 
complete your review before the regulations go into effect? Do you 
anticipate completing it before the end of fiscal year 2004?
    Response. We anticipate completing our review in the near future.
Water Quality Trading Policy
    Question 22. This past January, EPA released its final Water 
Quality Trading Policy Statement outlining how trading might occur. The 
Policy states that, ``EPA believes that the Clean Water Act provides 
authority for EPA, States, and tribes to develop a variety of 
activities to control pollution, including trading programs'' without 
articulating where the Act authorizes such activity. In a letter from 
Deputy Assistant Administrator Ben Grumbles to Congressman Peter 
Defazio on the question of legal analysis done to ensure the legality 
of water trading as it relates to authorized activities under the Clean 
Water Act, the EPA states that, ``the Office of General Counsel . . . 
has not prepared any formal opinion or written analysis regarding the 
legality of water quality trading.'' No provision of the Clean Water 
Act mentions water quality trading as a means to comply with NPDES 
permits, water quality standards, or TMDLs. In issuing the policy EPA's 
Office of General Counsel would have analyzed the policy as it relates 
to the Clean Water Act before signing the policy. I must assume that 
OGC had some rationale for approving the policy. What specific 
provisions of the Clean Water Act and its regulations specifically 
provide EPA with the authority to develop trading programs to meet the 
requirements of the Clean Water Act? If there is no explicit authority 
to do so, what authority did EPA use to assert that EPA is authorized 
to use water quality trading under the Clean Water Act (1) in 
unimpaired waters, (2) in impaired waters prior to the development of a 
TMDL, and (3) under an approved TMDL?
    Response. The Clean Water Act, 33 U.S.C. Sec.  1251, et seq. (CWA) 
and its implementing regulations establish a legal basis and authority 
for trading to achieve and maintain water quality standards. EPA's 
Water Quality Trading Policy provides States with guidance on how 
trading may occur consistent with the CWA and its implementing 
regulations. EPA notes that the policy does not contemplate that EPA 
will develop a trading program.
    To understand the legal basis for trading in unimpaired waters, in 
impaired waters prior to the development of a total maximum daily loads 
(TMDL), and under an approved TMDL, it is necessary to understand how 
water quality standards establish the foundation for water quality 
trading to occur. Section 303(c) requires States and tribes to adopt 
water quality standards for waters within their boundaries. The level 
of water quality that must be attained and protected is established by 
these standards. Water quality standards are composed of three parts: 
(1) designated uses, e.g., protection of fish and wildlife, recreation 
and drinking water supply (40 C.F.R. 131.10); (2) numeric or narrative 
water quality criteria to protect those uses (40 C.F.R. 131.11); and 
(3) an antidegradation policy (40 C.F.R. 131.12). When a water quality 
standard is approved or promulgated by EPA it becomes the basis for 
establishing TMDLs and water quality-based effluent limitations in 
National Pollutant Discharge Elimination (NPDES) permits (40 C.F.R. 
131.21).
    The second critical concept and foundation for water quality 
trading is the requirement under the CWA that NPDES permits contain 
water quality-based effluent limits as stringent as necessary to meet 
water quality standards (CWA Section 301(b)(1)(C)). These water 
quality-based effluent limitations provide the baselines for point 
sources to trade. A baseline is the level below which a reduction is 
made to create a pollutant reduction credit. The Water Quality Trading 
Policy (Section III.D.) encourages sources to create pollutant 
reduction credits by making reductions greater than required to meet a 
regulatory requirement. A point source may do so by reducing its 
discharge below the level necessary to comply with a water quality-
based effluent limit based on a TMDL or other analysis. The policy 
encourages reductions greater than would otherwise be achieved.
    All water quality-based effluent limitations, including alternate 
or variable limits that may apply where trading occurs, are subject to 
CWA section 301(b)(1)(C). EPA has promulgated regulations specifying 
when such water quality-based effluent limitations are necessary and 
how such limitations are to be derived. Among other things, EPA's 
regulations require the permitting authority to ensure that:

    (A) The level of water quality to be achieved by limits on point 
    sources established under this paragraph is derived from, and 
    complies with all applicable water quality standards; and

    (B) Effluent limitations developed to protect a narrative water 
    quality criterion, a numeric water quality criterion, or both, are 
    consistent with the assumptions and requirements of any available 
    wasteload allocation for the discharge prepared by the State and 
    approved by EPA pursuant to 40 CFR 130.7. (40 C.F.R. Sec.  
    122.44(d)(1)(vii) (emphasis supplied)).

    If a water quality-based effluent limitation is consistent with the 
requirements of CWA section 301(b)(1)(C) and EPA's regulations at 40 
C.F.R. Sec.  122.44(d)(1), then the limitation is lawful. Nothing in 
the CWA prohibits the issuance of a water quality-based effluent 
limitation that meets the requirements of CWA section 301(b)(1)(C) and 
EPA's implementing regulations simply because the limitation is based 
on a trade. By the same token, if a trade-based effluent limitation 
does not comply with the requirements of CWA section 301(b)(1)(C) and 
40 C.F.R. Sec.  122.44(d)(1), then it would be unlawful and it cannot 
be contained in an NPDES permit. See Section 402(a)(1). Nothing in the 
Trading Policy changes this.
    Under EPA's Water Quality Trading Policy, water quality standards 
established to protect designated uses are the baseline for generating 
pollution reduction credits. (See Section III.D). EPA's Water Quality 
Trading Policy does not support trading that would cause an impairment 
of designated uses, adversely affect a drinking water supply or exceed 
a cap established by a TMDL (Section III. F.5.). The policy encourages 
sources to create a pollution reduction credit by making reductions 
greater than those required to meet water quality-based effluent 
limitations. These ``surplus'' reductions could then form the basis of 
a trade. For example, where a TMDL has been established the point 
source effluent limitation based on the waste load allocation, and 
nonpoint source load allocation, would establish the baselines for 
generating a pollution reduction credit. In order to generate a credit, 
a source would not only need to reduce loadings to the allocation set 
by the TMDL (or resulting effluent limitation) but must surpass that 
level before a tradable credit could be created. A source buying a 
credit would then be able to increase its discharge only in the amount 
of the ``surplus'' generated by the other source. The result would be 
that, at a minimum, the post-trade loadings from the two sources would 
be equal to or, depending on the cap and trading program design, could 
be less than the total loadings that would have been discharged by the 
two sources in the absence of a trade. It is important to emphasize 
that a use of credits that would result in any impairment of a 
designated use would not assure the attainment of water quality 
standards and, therefore, would not be authorized under CWA Section 
303(d)(4)(A) even if the cumulative load from the trading partners is 
equal to or less than it would have been without the trade.
    Trading In Unimpaired Waters. For waters where the level of water 
quality equals or exceeds the level necessary to protect designated 
uses, a water quality-based effluent limitation can be developed to 
reflect the purchase of a credit only if such revision is consistent 
with the applicable antidegradation policy (CWA Section 303(d)(4)(B)).
    The Water Quality Trading Policy supports trading for the purposes 
of maintaining levels of water quality higher than necessary to protect 
and support designated uses consistent with Federal antidegradation 
policy (Section III.E.1.) For example, subject to a State's 
antidegradation policy, trading could potentially be used to offset new 
or increased discharges through actual pollutant reductions obtained 
from other sources--so that no lowering of water quality occurs.
    Trading In Impaired Waters. Where water quality standards have not 
been attained, water quality-based effluent limitations based on a 
waste load allocation contained in a TMDL or other wasteload allocation 
may be revised if the cumulative effect of all such revised limitations 
will assure attainment of water quality standards (CWA Section 
303(d)(4)(A)). This provision assumes that the limitations being 
revised to reflect a trade were written in compliance with the 
requirements of CWA Section 301(b)(1)(C). As such, the pre-trade 
effluent limitations would be calculated at levels as stringent as 
necessary to achieve water quality standards. It follows, therefore, 
that revisions to those original limitations also will assure the 
attainment of water quality standards. Once again, however, it is 
important to emphasize that a use of credits that would result in the 
impairment of a designated use would not assure the attainment of water 
quality standards and, therefore, would not be authorized under CWA 
Section 303(d)(4)(A) even if the cumulative load from the trading 
partners is equal to or less than it would have been without the trade.
    The policy (Section III.E.2.) supports pre-TMDL trading in impaired 
waters to achieve progress toward or the attainment of water quality 
standards. For example, EPA supports individual trades that achieve a 
net reduction of the pollutant traded or watershed-scale trading 
programs that reduce loadings to a specified cap supported by baseline 
information on pollutant sources and loadings.
    Trading Where There is a TMDL. CWA Section 303(d)(4)(A) 
specifically contemplates the adjustment of water quality-based 
effluent limitations based on a TMDL even where the adjustment might 
make one set of limitations less stringent than it otherwise might have 
been, see CWA 402(o)(1), as long as the cumulative effect of the 
revisions assures the attainment of water quality standards. For 
impaired waters for which a TMDL has been approved or established by 
EPA, a cap on the pollutant causing impairment is included in the TMDL, 
which under CWA Section 303(d)(1)(C), must be established at a level 
necessary to meet water quality standards. The trading policy (Section 
III.E.3.) supports trading that is consistent with the assumptions and 
requirements upon which the TMDL is established. (That test is derived 
from EPA's regulations at 40 CFR 122.44(d)(1)(vii)(B)). Under those 
circumstances EPA expects that the cumulative effect of the revised 
water quality-based effluent limitations will continue to assure the 
attainment of water quality standards. The policy does not support any 
trading activity that would delay implementation of a TMDL, that would 
cause the combined point source and nonpoint source loadings to exceed 
the cap included in the TMDL, or that would cause an exceedance of 
water quality standards (e.g., impairing designated uses).

    Question 23. The Water Trading Policy also states that EPA, ``does 
not currently support trading of pollutants considered by EPA to be 
persistent bio-accumulative toxics (PBTs)''. However, because EPA chose 
to issue this document as a policy statement rather than a regulation, 
it does not have any legal enforceability. Isn't it true, then, that 
EPA could not prevent a watershed from initiating a trading program of 
PBTs or other toxics such as mercury even though the policy states that 
EPA does not support such programs?
    Response. The CWA and its implementing regulations establish a 
legal basis for establishing water quality standards, issuing NPDES 
permits and developing and implementing TMDLs that would form the 
framework for water quality trading. Therefore, it is possible that 
trading of PBTs or other toxics may occur but only if the trade is 
consistent with all applicable provisions of the CWA and Federal 
regulations.

    Question 24. Late this past year, EPA staff informed my staff that 
the then forthcoming water quality trading policy would include limits 
on the portion of pollutant load reductions a permit holder could meet 
through trading in order to minimize hotspots. In addition, the 
proposed water quality trading policy statement included a provision 
that explicitly addressed the risk of pollution hotspots stating, ``Any 
use of pollutant reduction credits or allowances that would cause a 
localized impairment of existing or designated uses at the point of 
use, or that would exceed an in-stream target established under a TMDL 
is not acceptable.''
    However, this policy includes no mention of trade limitations on 
individual permit or any other conditions to mitigate the risk of 
localized impairments of water quality. An e-mail from EPA staff to my 
staff states that the deletion of those provisions was not intentional 
and must therefore have been an unintended by-product of the extensive 
editing done between the proposed and final policies. If the deletion 
of the phrase was not intentional, will EPA put back into the policy 
conditions that would prevent the development of a trading programs 
that cause localized impairments of water designated uses and water 
quality standards?
    Response. The provision ``Any use of pollutant reduction credits or 
allowances that would cause a localized impairment of existing or 
designated uses at the point of use, or that would exceed an in-stream 
target established under a TMDL is not acceptable'' was revised in 
response to comments received during the public comment period. Several 
comments pointed to the fact that the term ``localized impairment'' was 
not defined in either the proposed policy or EPA's regulations and 
therefore was unclear. To address this and other comments, a number of 
changes were made throughout the policy. A decision was made not to 
retain or introduce undefined terms. This led to deleting the words 
``localized impairment'' and ``in-stream target.'' A number of other 
edits were made to emphasize the need for consistency with water 
quality standards. Other edits included writing a specific section on 
protecting designated uses (Section III.F.5.) and adding language on 
mixing zones (See Section III.C.). In any case, the policy's repeated 
emphasis on the need to protect water quality standards is intended to 
indicate that the policy does not support any trading that would cause 
localized impairment.
    EPA's trading policy contains numerous provisions emphasizing that 
trading should maintain water quality standards (including designated/
existing uses) throughout the trading area. The clear implication of 
this is that trading activity must avoid locally high pollutant 
concentrations that would cause an adverse impact. Although the phrase 
``adverse localized impacts'' does not appear, the intent of the policy 
is clear that trading may not cause high localized concentrations of 
pollutants that would exceed standards. The relevant provisions are 
given below with emphasis provided in bold. In addition to these 
numerous references in the trading policy, EPA's' implementing guidance 
for watershed-based permits and TMDLs will stress that re-allocations 
must not create locally high pollutant concentrations.
      p. 4 Establishing defined trading areas that coincide 
with a watershed or TMDL boundary results in trades that affect the 
same water body or stream segment and helps ensure that water quality 
standards are maintained or achieved throughout the trading area and 
contiguous waters.
      p. 4 EPA believes that such trades may pose a higher 
level of risk and should receive a higher level of scrutiny to ensure 
that they are consistent with water quality standards.
      p. 4 Where State or tribal water quality standards allow 
for mixing zones, EPA does not support any trading activity that would 
exceed an acute aquatic life criteria within a mixing zone or a chronic 
aquatic life or human health criteria at the edge of a mixing zone 
using design flows specified in the water quality standards.
      p. 7 Protecting Designated Uses. EPA does not support any 
use of credits or trading activity that would cause an impairment of 
existing or designated uses, adversely affect water quality at an 
intake for drinking water supply or that would exceed a cap established 
under a TMDL.
      p. 7 Public Notice, Comment and Opportunity For Hearing. 
Notice, comment and opportunity for hearing must be provided for all 
NPDES permits (40 CFR 124). NPDES permits and fact sheets should 
describe how baselines and conditions or limits for trading have been 
established and how they are consistent with water quality standards.
      p. 7-8 Antidegradation. Trading should be consistent with 
applicable water quality standards, including a State's and tribe's 
antidegradation policy established to maintain and protect existing 
instream water uses and the level of water quality necessary to support 
them, as well as high quality waters and outstanding national resource 
waters.
      p. 8 EPA does not believe that trades and trading 
programs will result in ``lower water quality'' as that term is used in 
40 CFR 131.12(a)(2), or that antidegradation review would be required 
under EPA's regulations when the trades or trading programs achieve a 
no net increase of the pollutant traded and do not result in any 
impairment of designated uses.
      p. 11 Environmental evaluations should include ambient 
monitoring to ensure impairments of designated uses (including existing 
uses) do not occur and to document water quality conditions.
      p. 11 The results of program evaluations should be made 
available to the public. An opportunity for comment should also be 
provided on changes to the program as necessary to ensure that water 
quality objectives and economic efficiencies are achieved, and that 
trading does not result in an impairment of designated uses (including 
existing uses).

    Question 25. The Policy states that ``EPA does not support any 
trading activity that would cause a toxic effect, exceed a human health 
criterion or cause an impairment of water quality . . . [and that] EPA 
does not support trading of persistent bio-accumulative toxic 
pollutants at this time.'' Does EPA plan to support trading of PBTs in 
the future? If so, what is the timeline for the development of that 
policy? Does EPA plan to initiate pilot programs or any other program 
to pursue trading programs for persistent bio-accumulative toxics? If 
so, what are they?
    Response. At this time EPA has no plans to develop a policy to 
support trading of PBTs nor does EPA plan to initiate any pilot 
programs to pursue trading of PBTs. The only PBT trading pilot we are 
aware of is a project to consider whether trading could be used to 
offset a discharge of mercury from the Sacramento Regional Wastewater 
Treatment Plant (SRWTP). The plant's NPDES permit, issued by the State 
of California, requires the plant to identify possible sources of 
mercury offsets if the plant discharges more than 5.1 pounds per year 
of mercury. The pilot project was funded by EPA in 2002 and will 
consider possible approaches to and sources of mercury offsets that 
could potentially fulfill the requirements of the NPDES permit.

    Question 26. The Policy states that EPA, ``would support trades 
that involve pollutants other than nutrients and sediments on a case-
by-case basis.'' What will be the EPA's process for evaluating these 
cases? Will these examinations take into account localized 
concentrations of pollutants as a result of pollutant trading? Will 
they examine the effect of trading toxic pollutants on the public and 
wildlife? Does EPA have requests pending to approve a trading program 
for substances other than nutrients or sediments? If so, would you 
identify them? Does EPA anticipate receiving requests for approval for 
a trading program for substances other than nutrients and sediments in 
the near future? If so, can you identify any specific requests that 
will come?
    Response. The CWA and its implementing regulations provide the 
legal basis for evaluating any potential trade. These evaluations will, 
among other things, consider whether trading would result in any 
impairment to designated uses (e.g., impacts on aquatic life or people) 
or localized violations of water quality standards. In terms of process 
EPA expects that, as has been the case with virtually all trading 
programs, EPA regional offices will be consulted in the development of 
future trading programs. In addition, EPA will continue to exercise 
review and oversight authorities via NPDES permit oversight and TMDL 
approvals.
    EPA anticipates that the greatest opportunities for trading will 
occur in the context of TMDLs. EPA will review TMDLs and exercise its 
oversight authority to ensure that any TMDLs that include provisions 
for trading are consistent with the CWA and all applicable Federal 
regulations.
    Currently, we are not aware of any requests for EPA to approve a 
trading program that involves substances other than nutrients or 
sediments.

    Question 27. The Policy states that, ``EPA supports trading that 
involves nutrients or sediment loads. In addition, EPA recognizes that 
trading of pollutants other than nutrients and sediments has the 
potential to improve water quality . . . if trades and trading programs 
are properly designed.'' What conditions and requirements will EPA 
implement when evaluating whether a trading substances other than 
sediments and nutrients (such as toxics)?
    Response. The CWA and its implementing regulations provide the 
legal basis for evaluating any potential trade. These evaluations will, 
among other things, consider whether trading would result in any 
impairment to designated uses (e.g., impacts on aquatic life or people) 
or localized violations of water quality standards.

    Question 28. The Policy states that, ``trading may be used to 
preserve good water quality by offsetting new or increased discharges 
of pollutants.'' If a new source of pollution were to begin discharging 
pollutants to an unimpaired water body, would other dischargers of 
pollution need to reduce their aggregate discharge in order to offset 
the new polluter or would the existence of a trading program allow the 
new polluter to discharge a level of pollutants that would increase the 
aggregate pollutant load in the water body but not cause the water body 
to become impaired?
    Response. Federal regulations require States to develop and adopt 
an antidegradation policy. State antidegradation policies are to be 
consistent with the Federal policy which requires that, where the 
quality of waters exceeds levels necessary to support designated uses, 
that quality must be maintained and protected unless the State finds 
that allowing lower water quality is necessary to accommodate important 
development. (See 40 CFR 131.12). EPA's policy (See Section III.E.1.) 
supports trading to maintain high water quality when trading is used to 
compensate for new or increased discharges. Thus the trading policy 
supports reductions of existing pollutant loadings to offset the new or 
increased load, so that the result is ``no lowering of water quality.'' 
Nothing in the trading policy changes State antidegradation policies. 
Thus a State, in applying its antidegradation policy, may decide to 
authorize a new or increased discharge to a high quality water. However 
EPA's trading policy encourages States to use trading to offset that 
increased load. By providing an additional option for protecting high 
quality waters, while still accommodating important development, the 
policy may result in fewer State decisions to allow a lowering of water 
quality.

    Question 29. The Policy states that, ``EPA does not currently 
support trading of pollutants considered by EPA to be persistent bio-
accumulative toxics (PBTs). EPA would consider a limited number of 
pilot projects over the next two to 3 years to obtain more information 
regarding trading of PBTs.'' Does EPA have in mind which regions, 
watersheds, localities, or projects might be candidates for pilot 
projects under this policy? If so, would you identify them?
    Response. With the exception below, EPA is unaware of particular 
regions, watersheds, localities or projects that might be candidates 
for PBT trading pilots. EPA is only aware of one PBT pilot trading 
project: a project to consider whether trading could be used to offset 
a discharge of mercury from the Sacramento Regional Wastewater 
Treatment Plant (SRWTP). The plant's NPDES permit, issued by the State 
of California, requires the plant to identify possible sources of 
mercury offsets if the plant discharges more than 5.1 pounds per year 
of mercury. The pilot project was funded by EPA in 2002 and will 
consider possible approaches to and sources of mercury offsets that 
could potentially fulfill the requirements of the NPDES permit.

    Question 30. The Policy states that, ``[The pilot trading projects] 
initiatives illustrate the importance of voluntary watershed-based 
partnerships, inter-agency cooperation, and public participation in 
implementation of trading programs'' (emphasis added). The Policy does 
not articulate any requirement or mechanism for public participation 
during the consideration of a water quality-trading program. What 
requirements will EPA put in place to ensure public participation in 
water trading programs?
    Response. Requirements for public notice, comment and opportunity 
for hearing on all NPDES permits and TMDLs, including those that have 
provisions for trading, are established by the CWA and its implementing 
regulations. In addition to the opportunity for public participation in 
trading already provided through NPDES permits and TMDLs, the trading 
policy (Section III.G.6.) encourages States and tribes to involve the 
public at the earliest stages of trading program development and to 
provide easy and timely public access to trading information. As a 
practical matter, States wishing to develop a trading program will 
probably need to do so through legislation or rulemaking or by 
incorporating provisions for trading into core water quality management 
programs. This mechanism a State uses is a question of State law and 
policy. EPA's trading policy does not specify which approach a State 
must use; rather it provides flexibility for States to develop trading 
programs that include provisions for public participation that the 
State will choose depending on how it goes about developing a trading 
program within its jurisdiction.

    Question 31. The Policy states that, ``EPA will consider including 
provisions for trading in the development of new and revised 
technology-based effluent guidelines and other regulations to achieve 
technology based requirements, reduce implementation costs and increase 
environmental benefits.'' Where in the Clean Water Act does EPA have 
the authority to develop trading programs to meet technology based-
standards?
    Response. Since 1984, EPA has used trading as a basis for 
establishing alternative technology-based effluent limitations--known 
as the ``water bubble''--in connection with the Iron and Steel effluent 
guideline. 40 C.F.R. Part 420. EPA developed effluent limitations for 
the Iron & Steel point source category based on what it determined to 
be the best available technology economically achievable (BAT) for 
particular types of processes and operations. In determining BAT, EPA 
is authorized to consider a variety of factors, including the cost of 
achieving the effluent reductions achievable through various technology 
options. See CWA 304(b)(2)(B). Facilities are required to achieve the 
BAT effluent limitations applicable to their processes and operations, 
but they are not required to implement the underlying technology bases 
at any place in their facilities. See CWA 301(b)(2)(A). Indeed, 
facilities are allowed under the CWA to achieve their technology-based 
limitations using technologies that are less expensive than those EPA 
identified as its BAT basis. The Clean Water Act does not specify the 
point of compliance monitoring; rather, it leaves that decision to EPA.
    In the case of the Iron & Steel regulation, EPA allows each 
facility with multiple outfalls to apportion (or trade) pollutant 
loadings among the various outfalls of the facility that are subject to 
Part 420. This intra-plant trading is authorized under 40 C.F.R. 
420.03, commonly referred to as the ``water bubble.'' Under the ``water 
bubble'' provision, each eligible facility must continue to achieve the 
same total mass limitations required by the baseline regulation for a 
particular pollutant (for example, the regulation authorizes trading 
zinc for zinc, but not zinc for lead), but has the flexibility to do so 
through a redistribution of the outfall-specific mass loadings among a 
combination of outfalls at the facility. There are a number of 
pollutant-and subcategory-specific restrictions on the use of the 
``water bubble.'' These are described in 40 C.F.R 420.03. In addition, 
the regulation specifically provides that a discharger cannot qualify 
for alternative effluent limitations if the application of such 
alternative effluent limitations would cause or contribute to an 
exceedance of any applicable water quality standard. See 40 C.F.R. 
420.03(d). Note however that the policy is not intended to authorize or 
encourage trading to meet technology-based standards. On the contrary, 
the statement from the policy referenced in the question reiterates 
EPA's position that trading to achieve technology-based standards may 
only be used when explicitly authorized by regulation, as in the Iron 
and Steel water bubble provisions, and not based on the more general 
guidance provided in the policy.

    Question 32. How does the option to do water quality trading affect 
the obligation under the Clean Water Act to develop a TMDL?
    Response. Water quality trading does not affect the obligation 
under the CWA to develop a TMDL for impaired waters. Section 
303(d)(1)(C) requires that TMDLs be developed for waters for which 
technology-based limitations and other required controls are not 
stringent enough to achieve applicable water quality standards. (See 
also 40 CFR 130.7(b)(1)). Nothing in the trading policy changes this 
obligation. Where pre-TMDL trading occurs and achieves a level of 
reduction necessary to restore impaired uses, then the water body need 
not be listed as provided under 40 CFR 130.7(b)(1). In addition the 
policy indicates that EPA does not support any trading activity that 
would delay implementation of a TMDL.

    Question 33. In the Policy, EPA states that trading programs under 
a TMDL ``should be consistent with the assumptions and requirements 
upon which the TMDL is established.'' Could you please articulate which 
specific assumptions and requirements for TMDLs to which the policy is 
referring?
    Response. As a matter of policy EPA believes that trading should be 
consistent with TMDLs to ensure that water quality standards are 
achieved. The assumptions and requirements of a TMDL include: 1) the 
pollutant load (cap) at a level such that the water body can achieve 
water quality standards, 2) allocations of the cap among sources and/or 
source categories, and 3) a margin of safety including seasonal 
variations. TMDLs providing for trading may specify minimum allocations 
for point and nonpoint sources, trading margins that define the 
proportion of point source load reductions that is achievable through 
nonpoint source actions, and/or trading ratios to address uncertainty 
or equivalence between trades. The trading policy language indicates 
that trading activity should occur consistent with these and any other 
TMDL provisions. Finally, EPA notes that all water quality-based 
effluent limits--including those based on trades--must be ``consistent 
with the assumptions and requirements'' of TMDLs. See 40 CFR 
122.44(d)(1)(vii)(B).
Watershed Rule
    Question 34. Despite the progress of the development of TMDLs under 
the current rules in a stable regulatory climate, I understand that you 
are planning to issue a new rule to replace the TMDL currently in 
place. While we do not have a specific proposal, I understand that the 
new ``Watershed rule'' would drop the requirement for States to include 
an implementation plan, provide States with greater leverage to remove 
waters from their list of impaired waters, and rescind EPA's current 
mandatory authority to develop a TMDL when a State fails to do so. How 
can such a plan make our nation's waters cleaner?
    Response. The requirement for an implementation plan in the TMDL 
was contained in the July 2000 rule, which has never gone into effect 
and was withdrawn by EPA on March 19, 2003. This requirement never had 
an impact on the currently in-place TMDL program. Further, EPA's 
mandatory duty under Sec 303(d)(2) to establish a TMDL if it 
disapproves a State submission would remain in effect under any revised 
regulations. As we agree that the program has made progress under the 
current requirements, we are carefully reviewing whether or not we need 
to go forward with proposal of the watershed rule.
    We believe that the proposal currently under informal inter-agency 
review would help States address their clean water needs by improving 
monitoring and increasing scientific rigor of water quality standards 
attainment determination. It would also enhance tracking and public 
accountability by providing for a comprehensive listing of all State 
waters, according to attainment and monitoring status. The requirements 
for removing a water from the impaired category would be essentially 
the same as those currently in effect, but in addition, the State would 
be required to place the water in some other category of the 
comprehensive list and document its basis for doing so. The proposal 
would also improve and streamline State water quality management 
planning processes to ensure that TMDLs are integrated with other all 
water program activities and result in water quality improvement. 
Finally the proposal would encourage planning and implementation on a 
watershed basis.
    We are currently consulting with other agencies and are still 
considering whether to proceed with a rulemaking or to rely on guidance 
to achieve additional improvement in TMDL program implementation.
Water Security
    Question 35. The Bioterrorism Act required that drinking water 
utilities submit confidential vulnerability assessments to the EPA for 
safekeeping and examination. What role will DHS play in the examination 
and storage of those documents currently in EPA's possession and those 
security documents that will be submitted in the future?
    Response. EPA's information protocol was developed prior to the 
establishment of the Department of Homeland Security (DHS). Experts in 
the Office of Homeland Security reviewed and commented on this protocol 
required by the Public Health Security and Bioterrorism Preparedness 
and Response Act of 2002 (Bioterrorism Act). Because DHS has statutory 
authority to receive vulnerability assessments, EPA and DHS are in 
discussions on how to best use DHS's expertise within the limits 
imposed by the Bioterrorism Act.

    Question 36. The strategy for Homeland Security that was published 
by the Administration last year placed EPA in the lead for water 
treatment facilities and critical infrastructure. This makes some sense 
to me because EPA has expertise in the operation of these facilities 
and now of the dangers involved with some of the chemicals these 
facilities store, manufacture, or handle. Yet there are some dissenters 
who have expressed doubt that EPA can appropriately secure any 
information it obtains. These organizations advocate cutting EPA out of 
the receipt or review of information pertaining to the security of 
these facilities. I assume your agency has the ability to secure 
information, and in fact, I am aware that EPA has received trade secret 
and confidential information for years and has secured it? Are my 
assumptions correct?
    Response. Yes, your assumptions are accurate with respect to EPA's 
ability to receive and store confidential information. In fact, a staff 
member from the Office of Pollution Prevention and Toxic Substances, 
who is on detail to the Water Protection Task Force and has extensive 
knowledge and experience in dealing with confidential information, had 
lead responsibility for developing the protocol for ensuring the 
confidentiality of data contained in the water systems' vulnerability 
assessments. In October 2002, a draft protocol was presented to a wide 
range of stakeholders, including representatives from large, medium, 
and small drinking water systems, and their concerns were addressed to 
their satisfaction. The final protocol contains an appendix that 
describes in detail the Agency's experience in securing such sensitive 
and confidential information as grand jury deliberations, national 
security data, and confidential business information submitted by 
regulated industries.

    Question 37. One of the requirements of the Drinking Water security 
provisions of the Bio-terrorism Preparedness and Response Act requires 
that water facilities serving over 3,300 people submit vulnerability 
assessments of their treatment facilities. What does EPA plan to do 
with these vulnerability assessments? Will they be shared with the 
Department of Homeland Security for use in its infrastructure 
protection activities?
    Response. Currently, EPA and DHS are discussing formal processes to 
share information contained in vulnerability assessments. EPA's review 
of vulnerability assessments and the certification of their completion 
will focus on compliance with pertinent provisions of the Bioterrorism 
Act. In addition, we may analyze a subset of these assessments to 
assist in the future development of additional tools, training, and 
guidance for water systems in protecting their infrastructure. An 
appropriate mechanism for DHS involvement needs to be implemented to 
ensure consistency with statutory requirements. For instance, DHS staff 
would have to be designated by EPA's Administrator pursuant to the 
Bioterrorism Act.

    Question 38. Can the nation's vulnerabilities to terrorist threat 
be mapped without inputs such as a vulnerability assessment from key 
infrastructure sectors such as the water and wastewater sectors?
    Response. Given the variety in size and complexity of water and 
wastewater utilities, vulnerability to terrorist threats for these 
systems is very site-specific. It is important for the water sector to 
assess its particular vulnerabilities and work with local governments 
to ensure that they can both protect the systems within their 
jurisdiction and respond effectively in case of terrorist or other 
intentional acts.

    Question 39. We understand from some in the drinking water 
community that some water utilities have objected to the requirement of 
the Bioterrorism Preparedness and Response Act to submit their 
vulnerability assessment to EPA. Is EPA aware of any utilities that do 
not plan to submit vulnerability assessments?
    Response. Last summer organizations representing water utilities 
expressed concern on behalf of some water utilities about the Agency's 
ability to protect and secure confidential and sensitive data included 
in vulnerability assessments. EPA's information protocol addressed 
these issues and these organizations withdrew their request that 
vulnerability assessments be sent to the DHS instead of EPA. At this 
time, EPA has not been informed of any utility that is not planning to 
send its completed vulnerability assessment to the Agency as required 
by the Bioterrorism Act.

    Question 40. If a water utility refuses to submit their 
vulnerability assessment to EPA, what enforcement actions does EPA have 
at its disposal to enforce that provision of law? If a utility fails to 
submit its vulnerability assessment, will EPA file enforcement actions 
against those utilities?
    Response. Enforcement action is authorized through the Safe 
Drinking Water Act and enforcement response guidelines have been 
developed for this purpose. Before such authority is used, EPA intends 
to send letters to systems that do not submit their vulnerability 
assessments on or near the statutory deadline that was established 
according to the size of the population served by each community water 
system. We expect that such communication will encourage systems to 
comply expeditiously with the law.
Endangered Species Act
    Question 41. EPA and the Services have issued an Advance Notice of 
Proposed Rulemaking to promulgate counterpart regulations under the 
Endangered Species Act regarding EPA action in its pesticide regulatory 
program. Could you provide the fiscal year 2003 amount and the fiscal 
year 2004 budget request for the ESA part of the pesticide program and 
any projected cost increases or cost savings as a result of the ANPRM?
    Response. Endangered Species consultation is part of the process of 
registering or reregistering a pesticide, and consequently no separate 
activity budget is tracked for endangered species; resources are 
included in the allocation for registration and reregistration. EPA is 
using existing resources and expertise in ecological risk assessment 
within the pesticide program and elsewhere here in the Agency to 
address its pesticide obligations under the Endangered Species Act 
(ESA).
    Through ANPRM the Agency is seeking comments and suggestions for 
ways to improve the process. The EPA does not have a sense at this time 
what resources will be needed or changes will take place. One of the 
priority activities, as announced in the ANPRM, is to work with the 
Fish and Wildlife Service, the National Marine Fisheries Service, and 
the U.S. Department of Agriculture to develop approaches to pesticide 
endangered species protection that will better integrate existing 
pesticide endangered species processes.
    We expect these efforts to improve the efficiency and effectiveness 
of consultations on pesticide actions to enhance protection of species 
that are threatened or endangered and their proposed or designated 
critical habitat. At the same time, it must be noted that the task 
confronting the Agency and the Services is large and complex. There are 
many thousands of combinations of pesticide uses and species that may 
occur in many different parts of the country. All of these actions 
require appropriate assessment to assure compliance with requirements 
of the ESA while minimizing impacts to agriculture.
Air Quality
    Question 42. When asked if increasing greenhouse gas emissions will 
increase the risks of global warming and climate change, you said there 
is a correlation between atmospheric concentrations and climate change. 
What is the correlation?
    Response. The 2001 National Academy of Sciences Report on climate 
change stated that: ``Reducing the wide range of uncertainty inherent 
in current model predictions of global climate change will require 
major advances in understanding and modeling of both (1) the factors 
that determine atmospheric concentrations of greenhouse gases and 
aerosols, and (2) the so-called ``feedbacks'' that determine the 
sensitivity of the climate system to a prescribed increase in 
greenhouse gases (Summary). . . . A major limitation of these model 
forecasts for use around the world is the paucity of data available to 
evaluate the ability of coupled models to simulate important aspects of 
past climate. In addition, the observing system available today is a 
composite of observations that neither provide the information nor the 
continuity in the data needed to support measurements of climate 
variables. Therefore, above all, it is essential to ensure the 
existence of a long-term observing system that provides a more 
definitive observational foundation to evaluate decadal-to century-
scale variability and change (p.24).
    Thus, the President has challenged the scientific community to 
improve our understanding of a number of important uncertainties 
regarding climate change, including the effect of natural variations in 
climate, the actual degree and rate of warming, and how some of our 
actions could impact it.
    Some of these uncertainties were listed in testimony before the 
Senate Commerce Committee last year by Dr. James Mahoney, the Director 
of the Climate Change Science Program of the Department of Commerce. He 
noted that: ``Much has been learned about greenhouse gas emissions, 
abundance in the atmosphere, radiative properties, reaction rates and 
removal rates; and global climate models have developed to the point of 
moderate utility as analysis tools for application on a global scale 
and over long time averaged conditions. However, significant 
uncertainties remain regarding several issues that are critically 
important for defining optimal strategies for the management of global 
change. Among several key uncertainties, the following are illustrative 
of the continuing need for improved scientific understanding:

      The significant differences in long-term global average 
temperature changes projected by various well-recognized climate 
models.
      The relative importance of: (1) carbon-based (black 
carbon) aerosols; (2) sulfate-based aerosols; and, (3) CO2 
and other greenhouse gases in influencing climate change--each related 
to differing control strategies.
      The uncertainties in understanding the dynamics of marine 
ecosystems in the carbon cycle. Typical ocean uptake of CO2 
by biological productivity is many times larger than total global 
fossil fuel CO2 emissions. Enhancement of this biological 
productivity could affect future atmospheric CO2 levels.
      Major uncertainties in climate-ecosystems interactions, 
and land use/land cover influences on climate.
      Uncertainties in understanding global water cycles, 
including the current inability of general circulation models to 
successfully represent water vapor transport in the equatorial regions.
      The poor regional performance of current general 
circulation models, which severely restricts the examination of 
potential global change influences on key regional ecosystems such as 
bays, estuaries, and inland watersheds.''
    The Administration, through its climate change research plan, is 
working to reduce some of these uncertainties in the relationship 
between increasing atmospheric concentrations of greenhouse gases and 
climate change.

    Question 43. What implications does this correlation you have 
referenced between greenhouse gas emissions and the risks of global 
warming and climate change have for your responsibility as EPA 
Administrator for protecting public health and the environment?
    Response. EPA and all of the other executive branch agencies 
involved in climate change science, technology development, and 
voluntary emissions mitigation efforts are working together on the 
President's effective and science-based climate change strategy. This 
strategy establishes environmentally and economically sensible goals, 
concrete steps to meet the goals, and a balanced portfolio of research, 
emission reductions, and international cooperation. The U.S. strategy 
has three-prongs: slowing the growth of net greenhouse gas (GHG) 
emissions; laying important technological and scientific groundwork for 
both current and future action; and, working with other nations to 
develop an efficient and effective global response. This strategy 
builds on the Administration's June 2001 commitment to improve our 
understanding of the causes and potential harms posed by climate 
change, and to develop technologies that offer promise to significantly 
slow the growth of emissions. It is also the first step in a long-term 
commitment to slow and, if the science justifies, stop and then reverse 
the growth of GHG emissions. Importantly, it takes advantage of our 
growing experience with building better and more flexible institutions 
to address environmental problems.
    The first element of the United States climate strategy is slowing 
the growth of our GHG emissions. The President set a national goal of 
reducing U.S. greenhouse gas intensity (GHG emissions per dollar of 
GDP) by 18 percent over the next 10 years. Like an absolute emissions 
target, an intensity reduction of this magnitude requires real effort. 
Unlike an absolute emission target, an intensity target will not 
inadvertently hurt our economy. EPA's Climate Leaders program, the DOE-
EPA Energy Star program, and other EPA voluntary greenhouse gas 
programs are working to assist the Nation reach the President's 
intensity goals.
    The second element focuses on creating a solid foundation for 
current and future policies-investments in science, technology, and 
institutions. Better science promotes better decisionmaking. Better 
technology offers the promise to slow emissions growth significantly 
and more cost effectively. Better institutions enable us to pursue the 
lowest-cost emissions reduction opportunities, whatever they may be, 
whenever they arise over time, and wherever they occur both within and 
across nations. Improvements in the existing voluntary registry of 
greenhouse gas emissions, along with registered reductions for real 
emission reductions, are an important part of this institutional 
foundation. The process for improving the registry involves DOE, EPA, 
USDA, Commerce, and other Federal agencies working collaboratively in 
creating better measurement methods and verification of the different 
greenhouse gases emitted by a wide variety of sources and activities, 
providing greater confidence in the reported results, and encouraging 
firms to take account of their emissions. Registering real emission 
reductions provides a mechanism that allows firms to avoid being 
penalized under any future climate policy or be rewarded under any 
future incentive policy; provide tangible evidence of the impacts of 
voluntarily adopting advanced technologies; and provide incentives to 
curb future emissions.
    The final element of the President's approach incorporates 
international efforts, recognizing the critical importance of 
developing-country participation in any effective international 
response to climate change. Again, EPA is assisting in a number of 
bilateral and multilateral efforts that include both near-term efforts 
to slow the growth in emissions and longer-term efforts to build 
capacity for future cooperation.
Clear Skies Act
    Question 44. You indicated that if Clear Skies is implemented, 
there will be a reduction over the next 10 years of 12,000 fewer 
premature deaths than will occur under the current Clean Air Act. 
Please provide an estimate of the number of people that are dying 
prematurely every year because of power plant pollution now.
    Response. EPA's analyses of the effect of power plant emissions on 
premature deaths have focused on the incremental benefits of future 
additional controls on this sector. EPA has not estimated the total 
number of premature deaths associated with current power plant 
emissions. Based on analyses by others as well as EPA's incremental 
analyses to date, the impact from this sector may be in excess of 
20,000 premature deaths per year. The research upon which EPA's 
estimates are based show a rate of change rather than an absolute 
number.

    Question 45. How many of those dying prematurely every year (as 
estimated in the previous question) from plant pollution will be saved 
by final regulations the Bush Administration has promulgated under 
authority of the existing Clean Air Act to date?
    Response. Based on available research on ambient air pollution, EPA 
estimates that premature deaths associated with power plant emissions 
are overwhelmingly due to fine particle pollution. EPA's first ambient 
PM2.5 standard was adopted in July 1997 and did not clear 
its final legal hurdle allowing it to be implemented until 2002. Since 
that time, the Bush Administration has moved aggressively under the 
existing Clean Air Act to reduce emissions that contribute to fine 
particle pollution. For example, the Act authorizes EPA to set 
standards for diesel powered engines, which contribute significantly to 
fine particle pollution in many parts of the country. The Bush 
Administration has moved forward to implement very stringent new fuel 
and engine standards for diesel trucks and buses. In addition, the 
Administration recently proposed similar standards for non-road diesel 
fuel and engines that will come into effect in 2007. EPA estimates 
that, when these standards for on-road and non-road diesel engines and 
fuels are fully implemented, they will prevent approximately 17,900 
premature deaths every year.
    The Bush Administration also recognizes that, in order to address 
the problem of fine particles, power plant emissions of SO2 
and NOx will need to be reduced substantially. This is why the 
President has proposed the Clear Skies Act, which would reduce these 
emissions by approximately 70 percent from today's levels. 
Congressional action on Clear Skies is needed because, under the 
existing Clean Air Act, EPA has limited authority to regulate existing 
power plants. In order to reduce power plant emissions of 
SO2 or NOx under current law, the Agency would need to go 
through a long and cumbersome process. Among other things, EPA would 
need to conduct extensive additional analysis, conduct public hearings 
and take public comment, and then finalize a rule. This rule would then 
be subject to litigation, which often delays actual emissions 
reductions. Even after litigation, States would need to take additional 
action to decide how specific power plants would be affected by EPA's 
rule. The only time that the Agency has undertaken such an effort began 
in the mid-1990's. After almost a decade of rulemaking and litigation, 
this effort will finally begin to achieve significant emissions 
reductions in May of 2004, assuming the last round of legal challenges 
is resolved in EPA's favor, as we expect. The major steps in this 
process are shown on the attached chart.
    The Agency is moving as quickly as possible to develop a regulatory 
approach for reducing power plant emissions. Although this approach 
could provide substantial public health benefits, it will fall far 
short of the benefits that would be achieved under Clear Skies for at 
least the next decade. [LLA1] In contrast to the lengthy process 
provided under the current Clean Air Act, the emissions reductions 
under Clear Skies would start almost immediately upon enactment.

    Question 46. How many tons of pollution will not be emitted from 
power plants over the next 10 years due to regulations promulgated by 
the Bush Administration under the authority of the existing Clean Air 
Act?
    Response. One of the main reasons we need Clear Skies to pass this 
year is that, over the next decade, we can get much greater 
SO2 and NOx emission reductions from power plants under 
Clear Skies than we expect under the current Act. EPA has limited 
statutory authority to reduce power plant SO2 and NOx 
emissions over the next decade. Under the current Act, new limits on 
power plant SO2 and NOx emissions will be driven in large 
part by the need to attain the fine particle standards adopted in 1997 
and, to a lesser extent, by the need to attain the 1997 8-hour ozone 
standards. Under current requirements States must establish a 
monitoring system, collect and quality assure 3 years of data, and 
recommend to EPA whether areas should be designated attainment or non-
attainment for the fine particle standard. By 2004, EPA then must 
designate areas as in or out of attainment.
    To help bring into attainment those areas that will be designated 
non-attainment, we will need additional limits on SO2 and 
NOx emissions. We expect that these limits will be imposed as a result 
of EPA and State rulemakings to address pollution transport. The most 
likely model is the NOx SIP Call, in which EPA set statewide budgets 
for NOx emissions for certain States and then required those States to 
adopt regulations to meet those budgets. After spending several years 
working with States to develop a rule, the NOx SIP Call was proposed by 
EPA in 1997 and finalized in 1998. The rule was challenged and the 
court stayed the September 1999 deadline for State plan submission. The 
court upheld the SIP Call in early 2000, and EPA subsequently requested 
the court to lift the stay of the States' obligation to submit the 
plans. After the court lifted the stay--which had resulted in a 1-year 
delay in SIP submission--EPA provided the States with a similar 1-year 
extension to implement the rule. The rule requires most affected 
sources to begin reducing emissions in 2004.
    To reduce power plant emissions of hazardous air pollutants 
(principally mercury), EPA is also working on the utility Maximum 
Achievable Control Technology (MACT) standards, which is currently 
under discussion by a work group under the Federal Advisory Committee 
Act (FACA), and is scheduled for proposal in December of 2003 with 
anticipated promulgation in December 2004. Under this schedule and 
absent litigation delays, the initial compliance date for the standard 
would be December 2007 with a possible 1-year extension. At this pre-
proposal stage, it is not yet possible to provide a quantitative 
estimate of the tons of pollution that would be reduced by this 
standard.

    Question 47. In September 2001, EPA told the electric industry that 
the impending regulatory schedule could include a requirement for 
States to revise their implementation plans to dramatically reduce 
sulfur dioxide emissions in 2005 or 2006 (e.g. SOx SIP Call). This 
would be necessary to achieve timely attainment with the fine 
particulate standard and to avoid thousands of premature deaths 
annually. What progress has the Agency made on promulgating this rule?
    Response. Whether through legislation or regulation, we will need 
to reduce SO2 emissions to bring areas into attainment with 
the fine particle standard. EPA supports Clear Skies because it would 
provide greater progress through 2010 in reducing power plant emissions 
than would the regulatory processes under the current Clean Air Act. 
Clear Skies would provide cost-effective controls, coordinated fashion, 
no litigation delay, and certainty to industry. But, since we cannot 
guarantee that legislation will be enacted, or that the legislation 
will address all sources of interstate pollution, we are working on a 
PM Transport Rule. Last fall we established an intra-Agency work group, 
and have begun planning and conducting various technical analyses that 
are necessary for such a rule. We are also meeting regularly with 
State, local, and Tribal government stakeholders to discuss the plans 
for and results of various technical products. However, this is a long 
and cumbersome process and will most certainly be litigated. Although 
this approach could provide substantial public health benefits, it will 
fall far short of the benefits that could be achieved under Clear Skies 
through 2010 and cost much more.
Climate Change Research
    Question 48. You said that more needs to be done in climate 
research. The National Academy of Sciences has found that the 
Administration's draft climate research plan ``lacks a guiding vision, 
clear goals and explicit priorities.'' The Academy recommended that the 
plan be substantially revised to enhance efforts to support 
decisionmaking and set the stage for implementation. However, the 
fiscal year 2004 budget request includes a zero percent increase for 
climate change research. How much more should we be spending?
    Response. EPA believes that the level of resources in our fiscal 
year 2004 President's Budget Request for research on global change 
($21.5 million) is appropriate. EPA's Global Change Research Program is 
closely coordinated with the Climate Change Science Program (CCSP), 
which was created under the auspices of the cabinet-level Committee on 
Climate Change Science and Technology Integration (CCCSTI).

    Question 49. What provisions in the Clear Skies proposal will 
ensure that toxic hot spots do not result from using a cap-and-trade 
system for mercury emissions?
    Response. When Clear Skies is fully implemented, mercury emissions 
will be reduced 69 percent from 1999 emission levels--from 48 tons to 
15 tons. This cap would limit any possible increases of mercury 
emissions for the power sector. A national cap for mercury would cap 
the total emissions of mercury nationwide, unlike the existing act 
which could result in incremental increases in mercury over time.
    Seven years of experience with the Acid Rain Program has clearly 
demonstrated that market-based cap and trade programs achieve 
substantial emissions reductions, which significantly and efficiently 
improve air quality. Analysis of Acid Rain Program results by EPA and 
independent analysts (Environmental Law Institute, Environmental 
Defense, and Resources for the Future) have found that these emissions 
reductions have been achieved without creating hot spots.
    EPA's analyses of Clear Skies do not show significant geographic 
shifts in emissions for any of the three pollutants. EPA intends to 
undertake additional assessments to further investigate potential local 
impacts of Clear Skies. Finally, under Clear Skies, States could impose 
their own more stringent requirements.

    Question 50. You testified that the Clear Skies proposal will 
provide a 70 percent reduction in emissions of sulfur dioxides, 
nitrogen oxides, and mercury over the next 10 years. Please provide the 
initial and final years and emission levels which you are using to 
arrive at this reduction.
    Response. When fully implemented, Clear Skies will cap power sector 
emissions of SO2 (3 million tons/year), NOx (1.7 million 
tons/year), and mercury (15 tons/year) at levels that constitute an 
approximate 70 percent reduction of each pollutant from year 2000 
levels. While the final caps for each pollutant are established in 
2018, it is projected to take slightly longer to achieve the full 
emission reductions for these pollutants due to the early reductions 
and banking provisions included in Clear Skies. According to Clear 
Skies modeling completed in 2002, Clear Skies will reduce power sector 
emissions of SO2 from approximately 11 million tons/year in 
2000 to 6.6 million tons/year in 2010 and 3.9 million tons/year in 
2020; NOx emissions from 5 million tons/year in 2000 to 2.1 million 
tons/year in 2010 and 1.7 million tons/year in 2020; and mercury from 
48 tons/year in 2000 to 25.8 tons/year in 2010 and 18.2 tons/year in 
2020.
Greenhouse Gas Intensity
    Question 51. In the budget hearing, and recently, on CNN's ``Inside 
Politics'', you characterized the President's global warming policy 
goal as an 18 percent reduction in greenhouse gas emissions. Please 
clarify how the voluntary ``emissions intensity'' approach will result 
in any real reductions in total emissions.
    Response. The Administration's plans for addressing climate change 
calls for an 18 percent reduction in the greenhouse gas (GHG) intensity 
of the U.S. economy over the next 10 years. Greenhouse gas intensity 
measures the ratio of GHG emissions to economic output. This approach 
focuses on reducing the growth of GHG emissions while sustaining 
economic growth. It sets America on a path to slow the growth of 
greenhouse gas emissions, and as the science justifies, to stop and 
then reverse that growth.
    In efficiency terms, the 183 metric tons of emissions per million 
dollars of GDP that we emit today will be lowered to 151 metric tons 
per million dollars GDP in 2012. Existing trends and efforts in 
technology improvement will play a significant role. The President's 
commitment will thus achieve 100 million metric tons of reduced 
emissions in 2012 alone, with more than 500 million metric tons in 
cumulative savings over the entire decade. This goal is comparable to 
the average progress that nations participating in the Kyoto Protocol 
are required to achieve.
Mobile Source Toxics Funding
    Question 52. Has the Agency requested funds in the fiscal year 2004 
budget to conform to its announced schedule of issuing a final rule to 
reduce emissions of hazardous air pollutants from mobile sources in 
July 2004, as provided for in section 80.1045 of title 40, CFR?
    Response. On April 15, 2003, EPA proposed standards for nonroad 
diesel engines and fuel. Issuing these standards is likely to be one of 
the most important actions we can undertake to reduce the risks from 
mobile sources of hazardous air pollutants (air toxics). We have 
accelerated our consideration of this issue ahead of a more general 
mobile source air toxics rule.
    EPA did also commit to a new rule by July 2004 that would evaluate 
the need for and feasibility of additional controls of mobile source 
air toxics. This rulemaking was to be informed by additional research 
on ``hot spots,'' as well as the full range of exposure. Although we 
are making progress on this research and other work to support a new 
toxics rule, results from two key exposure studies will not be 
available until December 2003. It will then take about 1 year to 
develop a proposal informed by these studies. Therefore, our current 
plan is to propose the new rule in December 2004 and finalize as soon 
as possible after that date.

    Question 53. What steps, on the international level, has the 
Administration taken to reduce mercury emissions globally?
    Response. EPA has been proactive in supporting mercury research on 
a global scale, and in shaping international mercury policy issues to 
reduce emissions and uses of mercury.
    An important recent activity has been EPA(s leadership in the 
development of a Global Assessment of Mercury report for the United 
Nations Environment Programme (UNEP). Based on a suggestion from EPA 
and the Department of State, the UNEP Governing Council decided in 
February 2001 to conduct a global assessment of mercury. The 
assessment, with strong U.S. input, was completed in collaboration with 
governments, intergovernmental and non-governmental organizations, and 
the private sector in late 2002, and addressed the following:

      Sources, emissions inventories, long-range transport, 
chemical transformations, and fate of:
      mercury;
      Production and use patterns of mercury as a global 
commodity;
      Prevention and control technologies and practices, with 
associated costs and effectiveness;
      Exposures and effects on humans and ecosystems;
      Ongoing actions and plans for controlling releases and 
limiting use and exposures; and
      Options for international action.

    In February 2003, the UNEP Governing Council accepted the key 
findings of the Global Mercury Assessment and agreed on a program for 
international action on mercury. This decision was the result of multi-
national negotiations that were led by EPA with support from the U.S. 
Department of State. The new UNEP mercury program will result in 
significant action to address mercury releases into the environment, 
including capacity building activities to characterize mercury 
pollution sources and to develop appropriate strategies to mitigate 
them.
    The State Department has the lead for organizing followup actions 
by the U.S. Government in support of the new UNEP mercury program. We 
anticipate that EPA will have an important technical role in helping 
other countries to reduce releases of mercury to the environment 
(primarily air emissions), and also to reduce the demand for, and uses 
of, mercury that impact human health and the environment.
    In addition, the United States has been working with various 
regional organizations and fora on mercury, including:

      The U.S./Canada Great Lakes Bi-national Toxics Strategy;
      The North American Regional Action Plan for Mercury under 
the North American Commission for Environmental Cooperation (Mexico, 
Canada, U.S.);
      The Arctic Environmental Protection Strategy under the 
Arctic Council;
      The Long Range Transport of Atmospheric Pollutants Heavy 
Metals Protocol under the U.N. Economic Commission for Europe; and
      The Northeast Mercury Study (Framework for Action) with 
the Conference of New England Governors and Eastern Canadian Premiers.

    EPA is at the forefront of atmospheric mercury research into 
transformation and fate of mercury to better understand processes for 
global cycling. This research, in collaboration with other agencies and 
countries, is being undertaken at Ny Alesund, Norway, Mauna Loa, Hawaii 
and Cheeka Peak, Washington.
    EPA is funding and participating in an Arctic Council project to 
develop an Arctic inventory for mercury, with a focus on Russia. A 
pilot co-benefit emissions reduction research project is ongoing in 
Russia, as is a coal mercury inventory project.
    EPA is collaborating with the Department of Energy, under their 
Memorandum of Understanding with China, to shape an improved emissions 
inventory and understanding of emission sources for mercury and their 
characteristics in China. A model is being developed for the Chinese 
emissions sources and emissions control data, complemented by training 
on co-benefit emissions reduction approaches. An evaluation of mercury 
in coal is also ongoing, with USGS partnering on coal testing.
    Additionally, a number of emissions reductions, pollution 
prevention and capacity building projects are in the developmental 
stage. One of these is international outreach on best practices for the 
chloralkali sector, in conjunction with international partners in 
public and private sectors. Another is collaboration with UNIDO, 
through which EPA has been invited to serve on the Advisory Board, for 
artisanal mining practices that utilize mercury and contribute mercury 
emissions globally. Through a Letter of Understanding with Italy, EPA 
will advance a number of international mercury activities, initially 
through hosting international workshops on atmospheric transport and 
fate, including atmospheric transport modeling, and on human health 
toxicology.
    EPA looks forward to shaping and supporting the new UNEP Mercury 
Program, and will continue to seek partnerships in the public and 
private sectors to fill important data gaps in our understanding, as 
well as proactively engage in further pollution prevention, technical 
assistance and capacity building activities.

    Question 54. The section 812 study of the costs and benefits of the 
Clean Air Act estimates that 6.3 million lives will be saved by Title 
VI implementation, largely through reductions in skin cancer. This 
Title protects the stratospheric ozone layer from depletion and 
implements our compliance with the Montreal Protocol. Recently, you 
decided that it would be reasonable for the United States to continue 
consuming about 30 million pounds of ozone-depleting methyl bromide in 
2005 and 2006 and perhaps onward. Our treaty commitment says that 
number should be zero, not 30 percent of our 1991 baseline. What effect 
would this continued use of methyl bromide have on the number of lives 
estimated to be saved by Title VI?
    Response. I would like to clarify something that seems implicit in 
your question, which appears to suggest that the U.S. request for a 
critical use exemption is inconsistent with our treaty obligation under 
the Montreal Protocol and/or our obligations under the Clean Air Act.
    The Montreal Protocol's 2005 phaseout provision for methyl bromide 
included a specific allowance for the continued use of that substance 
after 2005 for uses agreed by the Protocol Parties to be ``critical 
uses''. The 1998 amendment to the Clean Air Act also changed the 
absolute 2001 phaseout of methyl bromide, stating that ``the 
Administrator shall not terminate production of methyl bromide prior to 
January 1, 2005.'' Further, the Act states that the Administrator shall 
follow a schedule for reduction and termination that is in accordance 
with, but not more stringent than, the phaseout schedule to the 
Montreal Protocol Treaty (CAA 604 (h)). Accordingly, our request to the 
Parties for a critical use exemption is fully consistent with both our 
treaty commitment and the Clean Air Act.
    Your question also cited the section 812 study relative to the 
number of lives saved from the implementation of the ozone protection 
provisions of the Clean Air Act. We are indeed very proud of the 
enormous health related benefits that have ensued from the 
implementation of Title VI of the Clean Air Act. As noted, modeled 
calculations have estimated that full implementation of the Montreal 
Protocol would save 6.3 million lives. However, since the time of that 
analysis, a great deal has changed. First, as noted above, the 1998 
amendments to the Clean Air Act allowed for exemptions for the 
production, importation, and consumption of methyl bromide for critical 
uses in Section 604(b)(6). In addition, it changed the phaseout of 
methyl bromide from 2001 to 2005 in Section 604(h) of the CAA and 
provided for exemption for quarantine and preshipment uses of methyl 
bromide as in Section 604(d)(5) in accordance with the Montreal 
Protocol. This quarantine and preshipment exemption allows methyl 
bromide to continue to be used to protect the United States from 
invasive species that are not found within our borders, such as the 
Mediterranean Fruit Fly. Also, since the original section 812 analysis 
was done, the Agency has promulgated rules virtually phasing out 
certain HCFCs and HBFCs and allowing the continued use of CFCs for 
metered dose inhalers (as used by asthmatics) until alternatives can be 
commercialized. We are unable at this time to determine the changes to 
the calculations of lives saved that would result from the United 
States receiving a methyl bromide critical use exemption at the level 
now being requested.
Montreal Protocol: Public Comment on Critical Use Exemptions
    Question 55. Will fiscal year 2003 or fiscal year 2004 funds be 
used so that the public will be able to comment on the ``critical use'' 
exemptions that you have applied for to the international body that 
oversees the Montreal Protocol, before you finalize those uses by rule 
later this calendar year?
    Response. Consistent with our obligation under section 604 of the 
Clean Air Act, EPA will provide an opportunity for the public to 
comment on the proposed 2005 distribution of methyl bromide that is 
exempted by the Protocol Parties on the basis of our 2003 request. Over 
the coming months, we will conduct outreach to understand the public's 
views on a potential distribution framework, and we will draft a 
proposed framework to facilitate the distribution consistent with any 
directives of the Parties. We anticipate that most of this initial work 
will be done with fiscal year 2003 funding. The subsequent work of 
developing and publishing the specific allocation is likely to be done 
using fiscal year 2004 funding. However, because the Parties' decisions 
will not be final before the end of November 2003, this last step is 
not likely to take place until early 2004.
New Source Review
    Question 56. How many Agency FTE's were working on enforcement and 
compliance with New Source Review requirements in each of fiscal years 
2002 and 2003, and how many will be working on it if the President's 
budget for fiscal year 2004 is approved by Congress?
    Response. EPA does not prepare budgets by media. Since the 
inception of the Government Performance Results Act (GPRA), the Agency 
has aligned its budget with our strategic Goals and Objectives. 
Accordingly, EPA does not separately track enforcement of NSR as a 
budget element. (The New Source Review Program falls under the Agency's 
Goal 9, ``A Credible Deterrent to Pollution,'' Objective 1, ``Increase 
Compliance Through Enforcement.'') Nevertheless, in response to a 
question raised by Senator Jeffords last summer, Governor Whitman 
estimated that the Agency had invested more than 200 full-time 
equivalents (FTEs) in NSR enforcement since 1999, for an average of 
about 67 FTEs per year. This time period included the discovery process 
for a number of trials, and the Agency devoted a large portion of its 
available air enforcement resources toward that effort. Having 
fulfilled these discovery obligations, personnel have been redirected 
toward investigating and prosecuting new NSR cases. The number of FTEs 
currently dedicated to NSR enforcement in the Agency remains consistent 
with the Governor's original estimate. No change in the overall level 
of enforcement FTEs is contemplated in the President's fiscal year 2004 
budget request.

    Question 57. How many cases of non-compliance with the New Source 
Review program's requirements has the Agency referred to the Department 
of Justice for prosecution in the last 12 months?
    Response. Since April of 2002, EPA has referred twenty-six cases of 
non-compliance with the New Source Review program's requirements to the 
Department of Justice for prosecution.
Diesel Retrofit Funding
    Question 58. The Administration has requested only a small amount 
for the heavy duty diesel retrofit program and the clean fuel vehicle 
procurement program. Wouldn't a larger request be warranted given the 
health benefits from such conversions and buying cleaner vehicles, 
especially at the local level and schools?
    Response. In fiscal year 2004, projects will continue to focus on 
reducing PM from older, high-polluting trucks and buses, with a 
particular emphasis on raising awareness of the problems of children 
riding to school in older, high-emitting diesel vehicles.
    EPA has required the production of low-sulfur diesel fuel that will 
allow newer control technologies to more effectively reduce harmful 
diesel particulate emissions. Further, EPA encourages areas to improve 
school bus emissions by giving credit for such programs in State 
Implementation Plans.
    Also, EPA has established an initiative called Clean School Bus 
USA: Tomorrow's Buses for Today's Children. This effort seeks to reduce 
children's exposure to diesel exhaust across the country by: 1) 
encouraging schools to implement practical policies and practices to 
eliminate unnecessary school bus idling; 2) installing effective 
emission control systems on newer buses; and 3) replacing the oldest 
buses in the fleet with new one.
MACT
    Question 59. Will all the final MACT rules be promulgated in this 
calendar year?
    Response. No, there are four remaining MACT rules that are 
scheduled to be promulgated February 28, 2004. They are:

      Plywood and Composite Wood Products
      Auto & Light Duty Truck Manufacturing (Surface Coating)
      Reciprocating Internal Combustion Engines (RICE)
      Industrial, Commercial, and Institutional Boilers & 
Process Heaters

    Question 60. Recently, there was an article in the Los Angeles 
Times suggesting that the Agency might not follow the Act's directions 
to complete the MACT rules, but might instead rely on some type of risk 
analysis to avoid implementation. What would the legal basis for not 
completing these MACT rules on schedule?
    Response. The article was incorrect. The Agency will issue all 
statutorily mandated standards. We have proposals that would allow 
individual sources to comply with these standards by demonstrating that 
they already pose insignificant risks, rather than simply installing 
pollution controls. We took comment on those proposals, we are 
reviewing comments on them, and we look forward to a vigorous 
discussion. These rules include the Combustion Turbines MACT rule, to 
be promulgated August 2003, and four other MACT rules to be promulgated 
February 2004 as follows: Plywood & Composite Wood Products; Auto & 
Light Duty Truck Manufacturing (Surface Coating); Reciprocating 
Internal Combustion Engines (RICE); and Industrial, Commercial, and 
Institutional Boilers & Process Heaters.
Particulate Matter Research
    Question 61. Why is there a small cut ($1.5 million) in the 
research program looking at particulate matter exposure measurement and 
health effects research which, according to the fiscal year 2004 budget 
documentation, ``will delay long-term epidemiological studies to 
resolve uncertainties related to PM health effects'' and will ``reduce 
the scope of human exposure measurements . . . ?''
    Response. EPA decided to delay selected particulate matter (PM) 
health and exposure research in order to accelerate research necessary 
to support implementation of the PM NAAQS. In the fiscal year 2003-2004 
timeframe, States will begin preparing State Implementation Plans to 
meet the PM NAAQS. The increase in implementation-related work is to 
meet the immediate air quality modeling and emission inventory needs of 
States, Regional Planning Organizations, and EPA's Office of Air and 
Radiation. The redirection reflects the Agency's commitment to conduct 
research that addresses priority science needs supporting the Agency's 
mission.
    This shift represents a delay, not elimination, of PM health 
effects research that is still expected to provide valuable scientific 
data for future NAAQS decisions. The redirection will not impact 
planned funding to support long-term epidemiological studies beginning 
in fiscal year 2004. The delay will not impair EPA's ability to provide 
meaningful data on long-term epidemiology and human exposure to PM in 
time for the next revision of the NAAQS.
NAAQS Implementation: Key Milestones
    Question 62. Please provide for the record the expected dates and 
times of key milestones for implementation of the 8-hour and fine 
particulate matter standards.
    Response. Key milestone in the implementation of the 8-hour 
standard are:

  
  
May 2003..........................  EPA proposes implementation rule
July 2003.........................  States/Tribes recommend designations
December 2003.....................  EPA finalizes implementation rule
April 2004........................  EPA finalizes designations
April 2007........................  State/Tribal plans due
2007-2021.........................  Range of attainment dates
     Key milestones for implementation of the fine particulate matter 
standard are:

  
  
September 2003....................  EPA proposes implementation rule
February 2004.....................  States/Tribes recommend designations
September 2004....................  1EPA finalizes implementation rule
December 2004.....................  EPA finalizes designations
December 2007.....................  State/Tribal plans due
2009-2014.........................  Range of attainment dates
     Question 63. Please describe the resources, guidance, and funds 
that EPA will use and provide to the States and communities in FY04 for 
ensuring that they will be prepared to demonstrate transportation 
conformity in the event of probable new nonattainment designations 
under the 8-hour ozone and fine particulate matter standards.
    Response. EPA is committed to working with DOT to provide timely 
guidance to new nonattainment areas before and as they implement the 
conformity program to avoid any unnecessary delays in transportation 
projects. We recognize that States and local areas will likely need 
assistance in understanding and implementing the new guidance and 
standards and we are prepared to provide help with this transition.
    Implementation of the new air quality standards for ozone and 
particulate matter will necessitate changes in the existing conformity 
regulation. EPA is currently working on conformity guidance and a 
rulemaking to address the new standards. The issues addressed in this 
upcoming guidance and rulemaking include:

      Determining what conformity tests apply before an area 
submits an air quality plan that includes transportation conformity 
budgets;
      Addressing PM2.5 as a criteria pollutant for 
conformity; and
      Providing flexibility in implementing conformity under 
the new standards, as appropriate.

    EPA plans to issue this guidance and rulemaking prior to 
designating areas so that the conformity requirements will be known 
prior to areas being subject to them. EPA and DOT, as well as 
stakeholders across the U.S., have a wealth of experience in 
implementing conformity.
    There are also a number of existing training courses that areas may 
find beneficial as they prepare to address conformity requirements. 
These courses include:

    NTI Conformity Course: The National Transit Institute has been 
offering a course called, ``Introduction to Transportation/Air Quality 
Conformity'' in locations across the country. This is a 21/2 day course 
designed for staff members of agencies involved in the conformity 
process and is offered free of charge. To date, this course has been 
offered 15 times, and attended by approximately 35 people per course. 
The next scheduled course offering is in May in Charlotte, NC.
    MOBILE6 Training: EPA and DOT jointly sponsored 8 MOBILE6 hands-on 
training courses across the country in 2002, attended by approximately 
25 people each. These courses were open to the public and offered free 
of charge. The training materials for these courses are on the MOBILE6 
website and can be downloaded at any time. Other training materials 
prepared by EPA are also available.
    Cooperative Agreement with NARC: EPA and DOT are jointly funding a 
cooperative agreement with the National Association of Regional 
Councils (NARC) to provide transportation and air quality planning 
information to their member organizations and to foster information-
sharing between organizations. In addition to providing web-based 
information and peer-to-peer technical support, workshops have been 
held specifically for areas experiencing air quality planning 
requirements for the first time. Workshops included sessions on the air 
quality planning process, best practices for determining conformity, 
smart-growth and air quality, using performance measures and project 
selection criteria, the implementation of the new 8-hour ozone NAAQS, 
and the health effects of PM2.5.
    NHI Air Quality Course: EPA and DOT are jointly funding a National 
Highway Institute course entitled,'' The Implications of Air Quality 
Planning for Transportation''. This course, recently piloted in San 
Antonio, is aimed at giving State and local transportation planning 
professionals a thorough overview of the air quality planning 
requirements of the Clean Air Act. The course also provides information 
on the State and local air quality planning processes that should be 
considered and integrated into the transportation planning process. The 
course includes modules on air quality standards, stationary and mobile 
source emissions, emissions inventories, SIP development, 
transportation and general conformity, transportation control measures, 
and the linkages between statewide and metropolitan planning and air 
quality planning.
    NHI Estimating Regional Mobile Source Emissions Course: EPA 
participated on the technical review committee for a new NHI course 
called Estimating Regional Mobile Source Emissions. The class is aimed 
at State and local transportation and air quality staff and will cover 
all aspects of estimating motor vehicle emissions at the local and 
regional level for SIP and conformity purposes. It is the first course 
to cover comprehensively all aspects of motor vehicle inventory 
preparation, from travel demand modeling to emission factor modeling, 
and should prove useful for staff in new nonattainment areas who have 
never had to do motor vehicle inventories before.
    NHI CMAQ Course: EPA and DOT are jointly funding a NHI course on 
the Congestion Mitigation and Air Quality Improvement (CMAQ) program. 
The CMAQ program is important to nonattainment areas because its 
purpose is to fund air quality beneficial projects that may assist them 
in demonstrating conformity.

    For the two previous significant conformity rulemakings, the 
initial 1993 and the 1997 amendments, EPA conformity staff held a 
``roadshow'' to explain the requirements of the rulemaking. Each Region 
invited the transportation and air quality agencies in their 
jurisdiction for these presentations and in some cases, these sessions 
were attended by well over 100 people. EPA is considering holding a 
similar roadshow to explain the conformity requirements to newly 
designated areas.
Superfund
    Question 64a. Administrator Whitman, you were quoted as saying at a 
January 31, 2003, appearance that ``the Administration has taken no 
position on reinstatement of the [Superfund] tax.'' Nevertheless, the 
President's fiscal year 04 budget proposal would replace funds 
typically generated by the Superfund fees with $1.1 billion from the 
general treasury.
    Does the Administration continue to oppose reinstatement of the 
Superfund fees?
    Response. This Administration is not in favor of creating new 
taxes. The Superfund tax has now been expired for 7 years and Superfund 
has continued to operate effectively. EPA continues to aggressively 
pursue responsible parties to conduct response actions at Superfund 
sites. It is expected that polluters will continue to pay for 
approximately 70 percent of the work at new Superfund construction 
starts.

    Question 64b. If so, am I correct that an increasing amount of 
money would need to come from the general treasury to preserve the 
level of funding of the Superfund program?
    Response. congressional appropriations that fund the Superfund 
program have historically included General Revenue. Since the tax 
expired in 1995, Superfund has had to rely more heavily on general 
revenues to finance the cost of cleanup. It is likely that the trend 
will continue in the future.
    Question 64c. In light of the competing budgetary priorities, what 
assurances can you provide that Superfund will receive adequate funding 
from the general treasury in future years to protect public health and 
the environment?
    Response. EPA cannot presuppose funding from Congress. I can assure 
you, however, that we will work with our Appropriations Committee to 
help secure appropriate funding in future years. Superfund remains a 
high environmental priority of this Administration.

    Question 65. You testified that one reason the pace of Superfund 
cleanups has dramatically slowed is that the remaining sites are 
``larger and more complex than sites we have had to deal with in the 
past.'' Given the increased complexity, does the program require 
increased resources to meet these needs?
    Response. The Superfund program is facing a need for additional 
resources to fund the construction phase of cleanup projects. For this 
reason, the President's budget requests an additional $150 million for 
Superfund remedial action activities. These resources will allow the 
Agency to begin work on 10 to 15 additional new construction projects 
during fiscal year 2004. and to have a similar number of additional 
completions in the following 2 years. EPA also anticipates that 
construction completion accomplishments will increase by approximately 
5 per year in fiscal year 2005 and fiscal year 2006 for a 2-year total 
of 90 (45 per year).

    Question 66. In a 2001 report to Congress by Resources for the 
Future, entitled Superfund's Future: What Will It Cost?, the Superfund 
program was estimated to need $1.748 billion in fiscal year 04, which 
is $358 million more than the President's fiscal year 04 proposal. 
Based on your testimony that increasing remedial action funding by $150 
million enables EPA to start 10-15 new construction projects, am I 
correct that funding Superfund at $1.748 billion would enable EPA to 
start construction or otherwise accelerate cleanup at 24-35 additional 
communities across the nation?
    Response. The RFF study was designed to estimate the costs of the 
Superfund program between fiscal year 2000 and fiscal year 2009 based 
on fiscal year 1999 data and assumptions. The projections are not 
designed to, nor should they be used to, to make funding decisions.
    The $150 million requested for long-term cleanup represents a 65 
percent increase over last year. The request is reasonable given the 
need for resources in other program areas and other national 
priorities. EPA will continue to evaluate resource needs for Superfund 
construction and request appropriate funding levels in subsequent 
years.
Enforcement
    Question 67. Could you please provide me with the number of actual 
enforcement personnel employed by EPA in fiscal years 2001, 2002, 2003, 
and the requested level in fiscal year 2004. The data should indicated 
how many persons employed by the Office of Regulatory Enforcement and 
the Office of Compliance Assurance.
    Response. The employee levels for the Office of Enforcement and 
Compliance Assurance, the Office of Regulatory Enforcement (ORE), and 
the Office of Compliance (OC) are provided below. OECA's numbers 
include all headquarters, field, and regional personnel. ORE and OC are 
two of OECA's headquarters offices and these numbers are separately 
identified as well as being included in the total OECA numbers.

 ----------------------------------------------------------------------------------------------------------------
                                                                                        Fiscal Year
                                                              Fiscal Year  Fiscal Year      2003     Fiscal Year
                           Program                              2001 FTE     2002 FTE    Projected       2004
                                                                Actuals      Actuals        FTE       Request***
                                                                                         Actuals**
----------------------------------------------------------------------------------------------------------------
Office of Enforcement & Compliance Assurance (OECA).........      3,408.4      3,371.4      3,360.0      3,411.3
Office of Regulatory Enforcement*...........................          146          144          159        127.8
Office of Compliance*.......................................          148          153          149        135.5
----------------------------------------------------------------------------------------------------------------
*The on-boards and FTE identified for ORE and OC are also included in the total numbers for OECA.
**Fiscal year 2003 congressional appropriations report language directed EPA to provide $15.2 million to fund
  additional FTE in the compliance monitoring, civil enforcement, and compliance assistance programs. The
  earmark funded an increase of 154 FTE for OECA. OECA received the increased FTE in late March 2003 and is in
  the process of aggressively hiring up to the authorized fiscal year 2003 FTE ceiling.
***The fiscal year 2004 request includes an increase of 100 FTE above the fiscal year 2003 request. The
  additional FTE will be used for compliance monitoring and civil enforcement activities. These resources will
  be distributed to individual headquarters and regional offices during the Agency's fiscal year 2004 operating
  plan process.

    Question 68. EPA's report on the fiscal year 2002 Enforcement and 
Compliance Program raises concerns about the Administration's 
commitment to enforcing the nation's environmental statutes. Could you 
please explain why the data reveals substantial declines over the last 
5 years in the following ten categories: EPA inspections; Civil 
referrals to the Department of Justice; Civil Judicial Settlements; 
Judicial Penalties; Value of supplemental environmental projects; 
Administrative compliance orders; Estimated pounds of pollutants to be 
reduced; Pounds of contaminates soil to be treated; Superfund private 
party commitments; and Superfund orphan share compensation offers.
    Response. EPA's fiscal year 2002 accomplishments reflect a vigorous 
and effective enforcement program, capturing nearly $4 million in 
injunctive relief through settlements that will go toward the cleanup 
of polluted sites and protection against further environmental harm; 
achieving a 26 percent increase in the number of companies self-
disclosing environmental violations; treating 2.8 billion gallons of 
contaminated groundwater, bringing drinking water systems that serve 
over three million Americans into compliance; and providing assistance 
to more than one-half million businesses and individuals to help them 
comply with environmental laws.
    Along with normal fluctuations in numbers over time, there have 
also been changes in the focus of the program that has led to changes 
in individual output numbers, but not to the Agency's continued 
commitment to enforcing our nation's environmental laws. Specifically, 
with regard to the areas mentioned above:
                              inspections
      Fiscal year 1998 was the most active inspection year in 
EPA history. While the number has declined since then, using 1998 as a 
baseline is not representative.
      In fiscal year 2002, the policy defining and directing 
Clean Air Act (CAA) stationary source and CFC inspections changed, and 
regions/States were credited differently, to provide a one for one 
count for a Full Compliance Evaluation per facility, which is different 
from earlier practice where a facility inspection would provide credit 
for each program covered by an inspection per facility.
      Over the past few years, the Agency has been shifting its 
focus away from inspecting large numbers of regulated entities--many of 
which are small businesses with equally small potential to harm to the 
environment and public health--to instead focus on more complex cases 
with bigger environmental impacts.
                            civil referrals
      The gradual drop in the number of cases referred to the 
Department of Justice over the past 5 years is the result of the 
Agency's increasing focus on larger, more complex cases. This is 
evidenced by looking at the value of injunctive relief obtained by the 
Department of Justice and the Agency over the same period: the highest 
amounts were collected in fiscal year 2001 and fiscal year 2002. 
Injunctive relief is often a crucial part of multi-media and multi-
facility cases, to correct the identified environmental violations and 
achieve meaningful results. This demonstrates that in this case, fewer 
civil referrals does not equate to fewer environmental results.
                    administrative compliance orders
      The gradual decline in these numbers is also the result 
of the Agency's increased focus on larger, more complex cases.
      fiscal year 2000 stands out as an anomaly. In that year, 
EPA first enforced a new requirement for the submission of ``Consumer 
Confidence Reports'' under the Safe Drinking Water Act.
    Civil Judicial Settlements, Penalties, Value of SEPs, and Estimated 
Pounds of Pollutants Reduced
      For the most part, each of these categories of numbers is 
cyclical and there is no pattern to be discerned from the last 5 years. 
For years during which large, complex cases are settled, the numbers 
can shoot way up, and when the opposite is true, the numbers are down.
      For pounds of pollutants reduced, fiscal year 1999 was 
anomalous because that was the year in which EPA reached settlement 
with seven major diesel engine manufacturers to resolve claims that 
they installed illegal computer software on heavy duty diesel engines. 
The action resulted in the reduction of millions of tons of NOx 
emissions from the nation's mobile sources.
      In the value of SEPs category, SEPs must be voluntarily 
undertaken by companies and must meet conditions to be approved as part 
of an enforcement settlement. The Agency cannot force companies to 
undertake these projects. 1999 was an anomalous year for the value of 
SEPs as a result of very large settlements, including FMC Corp. 
(responsible for $63 million in SEPs) and the aforementioned diesel 
settlements with seven diesel engine manufacturers ($109.5 million).
      There are three categories for which EPA started tracking 
data in fiscal year 2002 and which are therefore not comparable over 
the past 5 years: gallons of contaminated groundwater to be treated; 
acres of wetland to be restored; and individuals served by newly 
compliant drinking water systems. As you can see from the fiscal year 
2002 numbers, the Agency has had success in all three areas.
      Fiscal year 2003 will be a high-water mark in each of 
these categories thanks to a number of very large settlements announced 
within the last few months. These settlements are the result of complex 
negotiations spanning a number of years (again demonstrating the 
cyclical nature of this data). The following are just a few of the 
largest settlements:
    Colonial Pipeline--To resolve charges that the company violated the 
Clean Water Act on seven occasions by spilling 1.45 million gallons of 
oil from its 5,500 mile pipeline in five States, the company will pay a 
$34 million civil penalty, the largest penalty paid by a company in EPA 
history. Colonial will also provide injunctive relief valued at 
approximately $30 million to upgrade environmental protection on the 
pipeline and prevent future spills.
    Alcoa--Pursuant to a settlement resolving Alcoa's violations of the 
New Source Review (NSR) provisions of the Clean Air Act, the company 
will likely spend over $330 million to install state-of-the-art 
pollution controls to eliminate the vast majority of sulfur dioxide and 
nitrogen oxide emissions from the power plant at Alcoa's aluminum 
production facility in Rockdale, Texas. The combined effect of the 
pollution controls mandated by the settlement will be to reduce the 
company's emissions of sulfur dioxide (SO2) by 52,000 tons 
and nitrogen oxides (NOx) by 15,000 tons each year. Alcoa will also pay 
a civil penalty of $1.5 million and spend at least $2.5 million on two 
additional projects that will partially offset the impact of past 
emissions.
    Virginia Electric Power Company (VEPCO)--Pursuant to a settlement 
resolving VEPCO's NSR violations, the company will spend $1.2 billion 
between now and 2013 to eliminate 237,000 tons of sulfur dioxide and 
nitrogen oxides emissions each year from eight coal-fired electricity 
generating plants in Virginia and West Virginia. VEPCO agreed to pay a 
$5.3 million civil penalty and spend at least $13.9 million for 
projects in each of the five States that participated in the case and 
its settlement to offset the impact of past emissions.
    Wisconsin Electric Power Company (WEPCO)--Worth $600 million, this 
settlement will resolve WEPCO's NSR violations by eliminating more than 
105,000 tons of harmful air pollutants annually. The company will spend 
the $600 million to reduce 72,300 tons per year of SO2 and 
32,600 tons per year of NOx and improve its control of particulate 
matter (PM) from each of the plants included in the settlement. The 
company also will pay a $3.2 million civil penalty and spend at least 
$20 million to finance an environmental mitigation project 
demonstrating a new technology to significantly reduce mercury 
emissions from coal-fired power plants.
    Archer Daniels Midland (ADM)--This settlement will reduce 63,000 
tons of air pollution a year from fifty-two plants in 16 States. Among 
other things, ADM will install state-of-the art controls on a large 
number of units, shut down some of the oldest, dirtiest units, and take 
restrictive emission limits on others. EPA estimates that ADM will 
spend $340 million over a 10-year period to implement the entire 
injunctive relief package, which includes $213 million on capital 
improvements such as air pollution control equipment. ADM will also 
fund extensive environmental audits at all facilities, continuous 
emission monitoring, operation and maintenance, and an environmental 
management system that will assist the company and regulators in 
tracking compliance with the consent decree. In addition, ADM will pay 
a civil penalty of $4.6 million that will be shared with the co-
plaintiffs, and will spend $6.3 million on supplemental environmental 
projects.
                  superfund private party commitments
      In fiscal year 2002, EPA secured private party 
commitments for cleanup and cost recovery that exceeded $627 million. 
This dollar value is lower than in the two prior fiscal years; however, 
this value varies from year to year based on the sites that are in the 
Superfund pipeline at any given time. Some years there are high dollar 
value settlements at sites and other years low dollar value 
settlements. For instance over the past 10 years, the dollar value 
varied from a low in fiscal year 1997 of $609 million to a high of over 
$1.7 billion in fiscal year 2001.
      In the past 2 years, there were a small number of cases 
with high dollar values that increased the dollar value significantly. 
In fiscal year 2000, the Agency secured private party commitment for 
cleanup at G.E. Housatonic River site in Massachusetts for $700 
million; in fiscal year 2001 at CIBA-Geigy Corporationsite in New 
Jersey for $90 million and at Iron Mountain Mine in California for 
approximately $822 million. In addition in fiscal year 2001, the Agency 
secured private party commitments for cost recovery at Stringfellow in 
California for over $99.4 million. In fact the number of settlements 
for cleanup increased slightly in fiscal year 2002 over fiscal year 
2001 even though the total dollar value for cleanup significantly 
decreased.
               superfund orphan share compensation offers
      EPA has met its GPRA target of making orphan share 
compensation offers at 100 percent of eligible work sites for each year 
the reform has been implemented. The number of orphan share 
compensation offers has varied from year to year, depending on the 
number of negotiations started that year, and how many of those 
negotiations pertain to sites that are eligible for the reform (e.g., 
if a site does not have an orphan share, PRPs performing work at that 
site are not eligible for orphan share compensation). In addition, the 
amount of orphan share compensation has varied from year to year, 
depending on the number of offers made and the dollar value of each 
settlement.
EPSCOR
    Question 69. In formulating the Agency's budgetary and programmatic 
plan for the EPSCoR program, how much consultation with EPSCoR States 
did EPA do to assess research infrastructure needs?
    Response. After careful consideration, EPA has decided to follow 
the lead of the National Science Foundation and the Department of 
Agriculture to fund proposals from EPSCoR States that are in response 
to EPA Science to Achieve Results (STAR) solicitations, pass peer 
review, and fall near the cutoff for funding by the reviewing program. 
This mechanism operates internally within EPA and does not require any 
action on the part of the applicant. The goal of the EPA EPSCoR program 
is to fund high quality research while allowing investigators to gain 
experience in the competitive grants process and to become familiar 
with the EPA STAR program. EPA plans to use its limited EPSCoR 
resources through the STAR process and will no longer issue separate 
EPSCoR solicitations.
    This decision was made with input from members of the EPSCoR 
community, including several State EPSCoR directors, and after 
considering a number of options. In the end, EPA selected this approach 
as the most effective and efficient method for EPA to partner with 
EPSCoR States to enhance the quality and competitive capability of 
their environmental research.
                                 ______
                                 
    Responses of Administrator Christine Todd Whitman to Additional 
                     Questions from Senator Baucus
ASARCO
    Question 1. Describe what benefits will accrue to Environmental 
Protection Agency (EPA) as a result of the recent ASARCO settlement, 
including what sites EPA estimates it will be able to clean-up with 
funds from that settlement and how that estimate compares with EPA's 
estimates of the total cost to clean-up all of ASARCO's sites nation-
wide. I am particularly interested in what sites in Montana will be 
addressed with these settlement funds--it's my understanding that 
clean-up of the East Helena site alone will cost more than $100 
million.
    Response. The settlement with Asarco, approved on February 3, 2003, 
by the U.S. District Court for the District of Arizona, resolved claims 
filed by the United States under the Federal Debt Collection Procedures 
Act and the Federal Priorities Statute relating to Asarco's proposed 
sale of its majority stock interest in Southern Peru Copper Corporation 
to its immediate parent company, Americas Mining Corporation (``AMC''). 
Under the consent decree, Asarco and AMC were allowed to complete the 
transaction but AMC payed a significantly higher price than originally 
proposed. In addition, the consent decree required Asarco to create an 
independent Environmental Trust funded by a $100 million note from AMC, 
payable with interest over 8 years and guaranteed by AMC's parent 
company, Grupo Mexico S.A. The consent decree establishes a process for 
the development of annual plans, subject to approval by the United 
States, to allocate money in the Environmental Trust to pay the costs 
of work at certain sites where Asarco has signed a consent decree, 
administrative order on consent, or other legal commitment with the 
United States or a State, or has been identified as a potentially 
responsible party under the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA), the Resource Conservation and 
Recovery Act (RCRA) or other Federal or State law.
    It is important to note that because the purpose of this litigation 
was not to address ASARCO's environmental liabilities directly but to 
ensure that ASARCO received appropriate value from the sale of this 
important asset, this settlement does not relieve Asarco of any legal 
obligation it may have to perform clean-up work at any site, under 
either Federal or State law. In fact, the settlement works to ensure 
that substantial funds will be available to fulfill Asarco's 
environmental cleanup obligations, despite Asarco's current financial 
difficulties. The components laid out in the Consent Decree create the 
opportunity for a stronger and more stable company to more effectively 
address current and future environmental liabilities at sites across 
the country and deal with its significant financial problems.
    The Environmental Trust will be funded by a note from AMC, 
guaranteed by Grupo Mexico that will provide more than $126 million 
(including interest) over the next 8 years. In return for this 
dedicated cleanup fund, the United States will forego collection of 
some EPA past costs and penalties and will cap Asarco's Federal cleanup 
responsibilities for the next 3 years. However, the United States 
retains all claims it may have to require Asarco to perform or pay for 
future clean-ups. Moreover, the settlement does not affect any 
potential environmental claims by States against the company. 
Nonetheless, States with major Asarco sites--including Montana--were 
consulted concerning the settlement before it was signed and have been 
and will continue to be consulted on the use and distribution of the 
Environmental Trust funds.
    We recognize that the $126 million available from the Environmental 
Trust under this settlement will be insufficient to pay for all of 
Asarco's environmental liabilities. The hard truth is that Asarco is in 
real financial distress and, unless the market conditions that effect 
its performance improve substantially, will be incapable of paying all 
its environmental debts and Asarco may not survive as a going concern. 
Nonetheless, the aggressive enforcement actions taken by the 
Environmental Protection Agency and the Department of Justice and the 
resulting favorable settlement substantially increase the likelihood 
that Asarco will fund a major part of its cleanup obligations.
    To establish the budget for 2003, EPA worked closely with other 
impacted parties such as States, Tribes, the Department of the 
Interior, the U.S. Department of Agriculture, and ASARCO to maximize 
the efficiency of response activities at the ASARCO sites. EPA Regions 
worked closely with their State and other Federal Agency counterparts 
to prioritize sites and submitted a Regional / State list of sites 
ranked by risk posed to human health and the environment to EPA 
Headquarters and the Department of Justice (DOJ). Other factors, such 
as the ongoing operation of water treatment plants and work needed to 
stabilize sites were also considered in setting the priorities.
    EPA and DOJ have proposed that the Environmental Trust provide 
funds to 25 of the highest priority sites this year. This included 
funding for 10 EPA-lead sites, 13 State-lead and 2 Department of 
Agriculture lead sites. The proposal allocated funds to 12 of 17 States 
with Asarco sites.
    The East Helena Site in Montana was identified as the highest 
priority by EPA's Region 8 office in Denver and proposed that the 
Environmental Trust allocate more than $1 Million this year to address 
human health and environmental concerns at this site. This is about 8 
percent of the total funds available from the ASARCO Environmental 
Trust Fund for this year. EPA realizes that significant funds are 
needed to address the East Helena site, but as the funding needs exceed 
the amount of funds available from ASARCO's Environmental Trust, 
funding will need to be spread out over a number of years at the East 
Helena site as well as other ASARCO sites across the country.

    Question 1a. Please also describe how this settlement will impact 
cleanup activities that require funding that ASARCO would have 
provided, but which now must come from somewhere else as a result of 
the settlement, including from State and local governments, the Federal 
taxpayer, and what may remain of the Superfund Trust Fund.
    Response. As you are aware, the Superfund program currently uses an 
existing EPA National Risk-Based Priority Panel to evaluate funding 
decisions at Fund lead sites across the country. Given that all of the 
Asarco sites could not be funded at the requested levels, we employed 
the Priority Panel's criteria to assist us in making funding decisions 
from the Asarco Environmental Trust Fund (Environmental Trust). The 
sites with the greatest human health risks or with the greatest site 
stability issues and sites with ongoing activities such as operation 
and maintenance of water treatment plants and operation and maintenance 
of remedies in-place will receive some level of funding from the 
Environmental Trust. Some sites not funded under these criteria will be 
addressed by other PRPs present at these sites or the Superfund and 
other resources (State funds, or other financial resources such as 
bonds or trusts).
    Some sites being funded by the Environmental Trust have been 
submitted to the National Priority Panel and are already receiving 
funds from the Superfund Trust Fund. Some ASARCO sites are currently 
being considered for funds from Superfund funding while other sites may 
be considered for Superfund funding in the future.

    Question 2. Ms. Whitman, you indicated in your response to a 
question posed by the Chairman, Senator Inhofe, that you can't think of 
a single instance where a viable, responsible party has not been held 
liable for its share of the costs of cleaning up contaminated sites, 
and that this fact demonstrates the Administration's commitment to the 
``polluter pays'' principal, a cornerstone of the Superfund program. 
How does your response to my first question about the ASARCO settlement 
color the response you gave to Senator Inhofe? I pose this question, 
because it appears to me that in the case of ASARCO, a viable 
responsible party was, in a sense, let off the hook for the full cost 
of clean-up.
    Response. The settlement with ASARCO, approved on February 3, 2003 
by the U.S. District Court for the District of Arizona, resolved claims 
filed by the United States under the Federal Debt Collection Procedures 
Act and the Federal Priorities Statute relating to ASARCO's proposed 
sale of its majority stock interest in Southern Peru Copper Corporation 
(SPCC) to its immediate parent company, Americas Mining Corporation 
(``AMC''). Under the consent decree, ASARCO and AMC were allowed to 
complete the transaction but AMC payed a significantly higher price 
than originally proposed. In addition, the consent decree required 
ASARCO to create an independent Environmental Trust funded by a $100 
million note from AMC, payable with interest over 8 years and 
guaranteed by AMC's parent company, Grupo Mexico S.A. The consent 
decree establishes a process for the development of annual plans, 
subject to approval by the United States, to allocate money in the 
Environmental Trust to pay the costs of work at certain sites where 
ASARCO has signed a consent decree, administrative order on consent, or 
other legal commitment with the United States or a State, or has been 
identified as a potentially responsible party under the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA), the 
Resource Conservation and Recovery Act (RCRA) or other Federal or State 
law.
    It is important to note that this settlement does not relieve 
ASARCO of any legal obligation it may have to perform clean-up work at 
any site, under either Federal or State law. In fact, the settlement 
works to ensure that substantial funds will be available to fulfill 
ASARCO's environmental clean-up obligations, despite ASARCO's current 
financial difficulties.
    A short history of events leading up to the settlement may help put 
the settlement terms in perspective. By 2002, it had become clear that, 
due to low prices for ASARCO's primary product, copper, and the 
company's heavy debt burden, ASARCO was in financial distress. During 
2002, claiming inability to pay for the work, the company stopped 
paying for certain clean-up work that was required under Federal 
consent decrees or orders. In July 2002, ASARCO proposed to sell its 
largest asset, a majority stock interest in SPCC, to AMC. In August 
2002, at the request of the Environmental Protection Agency, the 
Department of Justice took the aggressive step of filing suit in the 
Western District of Washington (later transferred to the District Court 
in Phoenix, AZ) to block the stock sale, alleging that the proposed 
sale price was less than ``reasonably equivalent value'' and would 
illegally reduce ASARCO's ability to fulfill its environmental 
obligations to the United States.
    Once that sale was temporarily blocked, the United States began 
negotiations with ASARCO and its parent companies to assure there was a 
substantial increase in the consideration paid for the stock by AMC and 
to obtain adequate assurances that important clean-up work would be 
performed, despite ASARCO's precarious financial situation. After 
extensive negotiations, including many with the AMC's parent company, 
Grupo Mexico S.A. of Mexico City, the United States was able to meet 
both goals. First, the United States was able to ensure that more money 
goes to ASARCO from the parent company to assist ASARCO in continuing 
to survive as a viable entity, thus protecting jobs and preserving 
ASARCO's ability to continue performing clean-up work. Second, the 
United States was able to have a significant part of the increased 
price paid by the parent company dedicated to a secure trust fund for 
environmental clean-up, with a financial guarantee by the parent 
company (which was not involved in the litigation and was not liable to 
the United States for clean-up costs).
    As noted, the Environmental Trust will be funded by a note from 
AMC, guaranteed by Grupo Mexico that will provide more than $126 
million (including interest) over the next 8 years. In return for this 
dedicated clean-up fund, the United States will forego collection of 
some EPA past costs and penalties and will cap ASARCO's Federal cleanup 
responsibilities for the next 3 years. However, the United States 
retains all claims it may have to require ASARCO to perform or pay for 
future clean-ups. Moreover, the settlement does not affect any 
potential environmental claims by States against the company. 
Nonetheless, States with major ASARCO sites--including Montana--were 
consulted concerning the settlement before it was signed and have been 
and will continue to be consulted on the use and distribution of the 
Environmental Trust funds.
    We recognize that the $126 million available from the Environmental 
Trust under this settlement will be insufficient to pay for all of 
ASARCO's environmental liabilities. The hard truth is that ASARCO is in 
real financial distress and, unless the market conditions that effect 
its performance improve substantially, will be incapable of paying all 
its environmental debts and ASARCO may not survive as a going concern. 
Nonetheless, the aggressive enforcement actions taken by the 
Environmental Protection Agency and the Department of Justice and the 
resulting favorable settlement substantially increase the likelihood 
that ASARCO will fund a major part of its clean-up obligations. While 
other legal alternatives to this settlement were available, the EPA 
determined that secure funds for environmental response actions were 
the primary objective and the other options would be less productive.
Superfund
    Question 3. In general, how does the EPA and the Administration 
plan to maintain the integrity of the Superfund trust fund over the 
long-term, without a means to replenish the Superfund trust fund?
    Response. The Superfund Trust Fund is maintained by revenues from 
several sources including annual appropriations from General Revenue, 
interest on the ``unexpended'' balance remaining in the Trust Fund, and 
collections from enforcement actions with responsible parties:

      Resources appropriated by Congress for the Superfund 
program from General Revenues are placed in the Superfund Trust Fund 
along with funds from other sources. Funds appropriated for Superfund 
remain in the Trust Fund until expended.
      Due to the historical lag time in government outlays or 
actual payment of bills, unexpended funds will remain in the Trust Fund 
for many years. The unexpended balance projected in the fiscal year 
2004 President's Budget for the end of fiscal year 2003 exceeds $2.9 
billion. Interest accrues on the unexpended balance revenue for the 
Trust Fund. Interest on the unexpended principal balance in the Trust 
Fund has ranged from $110 to $350 million annually for the past 10 
years.
      Responsible Parties continue to provide funds to the 
Trust Fund through cost recovery payments, fines and penalties.

    Question 3a. Does the EPA have a long-term plan to replenish the 
Superfund trust fund that is faithful to the principal that the 
polluter should pay?
    Response. Viable polluters cleanup or pay for the cleanup of their 
sites. This accounts for approximately 70 percent of total Superfund 
site cleanups. EPA cleans up ``orphan sites'' where there is no viable 
polluter who can be forced to do the work or pay. If EPA cleans up a 
site when a polluter refuses to, then EPA sues the polluter for triple 
the cost of cleanup. Funding for EPA's Superfund program is provided by 
congressional appropriation. The Trust Fund is replenished from several 
sources. Congress appropriates General Revenues to the Trust Fund. 
Also, the Trust Fund receives interest revenue on the unexpended 
balance and the Trust Fund is the ongoing depository of funds derived 
from responsible parties. Each year, the Trust Fund is credited with 
revenue generated from (1) enforcement actions which recover prior 
Trust Fund expenditures (i.e., ``cost recoveries'') ($181 to $320 
million annually for the past 10 years), (2) fines and penalties paid 
by responsible parties ($0.6 to $5.0 million annually for the past 10 
years), and (3) the amount of corporate environmental taxes collected 
by the Treasury ($2.6 to $320 million annually after the taxing 
authority expired in fiscal year 1996). In addition to these sources of 
revenue, the Comprehensive Environmental Response, Compensation and 
Liability Act, as amended, (CERCLA) (Sec. 122(b)(3)) authorizes the 
Treasury to maintain a separate account in the Trust Fund for amounts 
collected through settlements and retained by EPA to carry out such 
settlement agreements (``Special Accounts''). By the end of fiscal year 
2002, EPA had created 255 Special Accounts, collected over $1 billion 
for cleanup work from responsible parties, accrued over $158 million in 
site-specific interest, and disbursed, obligated or promised almost 
$600 million for cleanup work.

    Question 3b. If the Superfund Trust Fund completely dries up, how 
will the EPA ensure that contaminated sites are cleaned-up, in a 
reasonable amount of time, without letting that burden fall on the 
average taxpayer or the local community?
    Response. As a technical matter, the Comprehensive Environmental 
Response, Compensation and Liability Act, as amended, provides that the 
Trust Fund shall receive such amounts appropriated or transferred for 
the purposes provided in the statute. As a result, each year, Congress 
appropriates resources from the general fund into the Trust Fund. As 
long as the Congress continues to appropriate funds to the Trust Fund, 
it will not ``dry up''.
    Approximately 5 percent of Superfund's annual appropriation is 
allocated to the enforcement function. EPA, using these resources, 
achieved 71 percent of new remedial action starts at non-Federal 
facility Superfund sites through private parties during fiscal year 
2002. Looking at the enforcement program since the inception of 
Superfund, EPA has achieved more than $8 in private party cleanup 
commitments and cost recovery, for every $1 spent on Superfund civil 
enforcement.
    EPA has implemented the Superfund program to identify immediate 
risk and take appropriate actions, assess sites and plan response 
actions where such immediate actions are not required, and manage 
ongoing cleanups with the goal of completing such sites as soon as 
possible. Where it is unrealistic to complete site cleanups in the year 
in which they are initiated, EPA has effectively and efficiently 
managed these projects to avoid shut-downs and restarts, and plans and 
schedules very large site projects (i.e., mega sites) based on 
realistic financing and contracting capacities. EPA believes that this 
methodical process best supports its responsibility to protect public 
health, welfare and the environment.

    Question 3c. How does the President's fiscal year 2004 budget 
request bear on this issue?
    Response. The President's fiscal year 2004 budget increases funding 
for cleanup construction by $150 million (a 65 percent increase over 
fiscal year 2003), which will allow the Agency to begin construction at 
an additional 10 to 15 sites. The President's fiscal year 2004 budget 
request reflects the funding level needed to maintain program progress 
in protecting human health and the environment. The request proposes 
apportioning the funding from the Trust Fund ($290 million) and from 
General Revenue ($1,100 million). EPA will continue to aggressively 
pursue viable responsible parties to conduct cleanups at Superfund 
sites consistent with the polluter pays principle, and ensure that 
funds made available to EPA through congressional appropriation are 
used to support activities at sites where responsible parties have not 
been identified or are not viable.
Libby, Montana
    Question 4. Ms. Whitman, recent press reports have indicated that 
EPA either did not know of, or ignored, studies that indicated 
disturbing Zonolite could release high concentrations of asbestos 
fibers. Other press reports have indicated that there is a link between 
EPA's actions in Libby to remove contaminated insulation and other fill 
material in Libby homes, and EPA's failures to warn the public about 
any risks associated with Zonolite insulation.
    Therefore, I am interested in any information the EPA may have 
regarding the relationship between the removal of contaminated 
materials from homes in Libby, and EPA's scientific understanding of 
the health risks posed by Zonolite insulation, or other vermiculite 
insulation manufactured from ore mined in Libby, Montana.
    Response. The Agency for Toxic Substances and Disease Registry 
(ATSDR) identified many different routes of asbestos exposure for the 
residents of Libby. Insulation was one of the 16 pathways ATSDR 
considered in its study. The ATSDR report found that four factors were 
highly associated with the likelihood of having asbestos-related health 
impacts, including working for the mine/processor, living in the same 
house with a worker, playing on vermiculite or waste piles, and having 
multiple exposure pathways. The study did not show that insulation, by 
itself, could be linked with the health impacts found in Libby.

    Question 5. Please tell me why the Agency has decided to leave 
contaminated insulation in many homes in Libby, rather than remove it?
    Response. EPA is working to remove contaminated vermiculite 
insulation from many of the homes, businesses and public buildings in 
Libby, Montana. The Agency is taking this unusual action due to the 
unique nature of public health impacts exhibited in Libby, the 
historical and widespread exposures by multiple pathways, the presence 
of the mine and processor, and the unique fact that asbestos-
contaminated materials that came to be in Libby homes and yards may not 
have been sold, packaged, labeled, inspected or warranted as a 
``product.''
    It is important to note that EPA did not decide to remove all 
contaminated insulation from every home in Libby. For instance, in some 
homes there is no access to the attic space for residents, and the 
insulation is well-contained in sealed areas, which do not exhibit any 
signs of deterioration or release of material. Similarly, contaminated 
insulation in the wall spaces in many homes will probably remain in 
place, when the walls are clearly intact and do not suffer obvious 
signs of deterioration or release. Under such conditions, where the 
likelihood of release or exposure is low, EPA may find that removal of 
the material is not warranted.

    Question 6. As you are aware, Ms. Whitman, there remains a lot of 
work to be done in Libby to ensure that the community finally gets the 
clean bill of health it so desperately needs. Working with Libby and 
our Federal partners to see that the community gets all the needed 
resources to achieve a clean bill of health remains my highest priority 
as a Montanan and a Member of Congress. Please outline for me how your 
agency plans to maintain momentum and focus in Libby, and what 
resources you understand will be available to continue clean-up 
activities in Libby over the next year.
    Response. The Libby asbestos site has been, and will likely remain, 
a top priority cleanup for EPA. To date, EPA has spent in excess of $75 
million in Libby to address contaminated properties and to evaluate the 
extent of human health impacts in the community. EPA is on track to 
spend as much as $17 million in fiscal year 2003 to continue these 
projects.

    Question 6a. Please also indicate whether these resources will 
allow you to meet established deadlines and targets for specific clean-
up activities.
    Response. The funding and personnel which EPA has devoted to the 
Libby cleanup have allowed us to maintain our momentum in identifying 
and addressing contaminated residential properties, businesses and 
public buildings associated with the Libby site. Our work plans include 
completing cleanups at more than 200 residential properties and 
businesses this year alone. EPA expects to maintain this pace of site 
cleanup. However, the Agency cannot predict whether we will discover 
additional contaminated properties which would extend the timeframe of 
our cleanup.

    Question 6b. If for any reason the EPA is falling behind on its 
commitments in Libby, for whatever reason, I want to know why and how I 
can help your agency get back on track.
    Response. Thank you for your offer of assistance with this project. 
EPA has accelerated the pace of site cleanups and is on track to 
complete 200 properties per year. The Agency expects to maintain this 
pace of work until we have completed addressing all contaminated 
properties in Libby.

    Question 7. During a hearing I held in June 2002, I challenged Ms. 
Horinko to leave no stone unturned as we seek to provide opportunities 
to Libby, Montana to recover from the devastating effects of the 
asbestos contamination tragedy, and to specifically seek opportunities 
to support the full recovery of the community. What resources does EPA 
plan to make available to the community of Libby to assist in economic 
development?
    Response. The Environmental Protection Agency does not have 
authority toward providing direct economic assistance. EPA's 
contribution is to see that Libby is cleaned of asbestos contamination 
such that properties can be returned to suitable use and the population 
is protected, that is, to provide any economic recovery a safe 
foundation to buildupon.
    In addition, EPA has worked at length with the community to explore 
options for economic redevelopment, land reuse, and worker job 
retraining in order to assist with the economic hardships faced by 
residents of Libby. In support of these efforts, the Agency has pursued 
the Superfund Job Training initiative, local contract resources and 
hiring, and the potential for economic redevelopment pilots to assist 
in bringing work and businesses to the local area.
    EPA also sponsored a workshop on economic revitalization for South 
Lincoln County. The workshop was held on April 24-26, 2003, and 
included participants from Lincoln County, the Town of Troy, the city 
of Libby, local economic redevelopment agencies and staff from Senator 
Baucus' office. The focus of this workshop was to facilitate 
partnerships among local, State, Federal and private agencies with 
economic revitalization interest, expertise and/or resources in order 
to foster economic development efforts. The workshop included Stimson 
Lumber Property revitalization, the Asbestos Research Center, 
recreational uses (aquatic center, biking, hiking, parks), cultural 
resources, and telecommunications. The outcome of these breakout 
sessions were implementation strategies for the specific revitalization 
goals. In addition to EPA, many Federal agencies which can provide 
assistance toward the revitalization goals participated in the 
workshop. The workshop was well received by the community, and will 
provide a starting point for local leaders to pursue economic 
revitalization.

    Question 7a. As you may recall, I discussed with Ms. Horinko, and 
my staff has had conversations with her office, about leveraging 
Brownfield funds for this purpose. Where are we on this initiative?
    Response. Although sites on the National Priorities List such as 
Libby are not eligible for EPA brownfields grants, EPA has been working 
closely with the communities to foster economic revitalization in other 
ways. The workshop held on April 24-26 is an example of how the 
brownfields model uses partnerships, incentives and technical 
assistance to assist communities in reaching their revitalization 
goals. Other Federal agencies may be able to offer more direct 
assistance, such as through HUD's Community Development Block Grants 
Program.

    Question 8. Please discuss EPA's understanding of the differences 
between tremolite asbestos and chrysotile asbestos in terms of the 
relative toxicity of each form of asbestos, and in terms of the unique 
health risks posed by tremolite asbestos as compared to chrysotile 
asbestos.
    Response. The differences between health risks posed by various 
forms of asbestos are important to EPA. This includes the potential for 
differences between chrysotile asbestos (from the serpentine family) 
and tremolite asbestos (one of the forms from the amphibole family). 
Fundamentally, mineralogical type, as well as fiber size, may influence 
the toxicity of asbestos fibers (e.g., data suggest that longer, 
thinner, fibers are generally more toxic than shorter, thicker, 
fibers). In EPA's earlier asbestos assessments, sufficient data were 
not identified to support different risk estimates for the different 
types of asbestos fibers. Consequently, EPA's current IRIS assessment 
(completed in 1986) does not provide different cancer risk estimates 
for different forms of asbestos. The Agency is currently re-evaluating 
the health effects of asbestos. One aspect of the evaluation will 
examine the question of different risk estimates for different forms of 
asbestos. There will be two different health profiles developed (one 
for noncancer and one for cancer). The noncancer profile is expected to 
be ready for external review in 1-2 years and the cancer profile will 
follow. The total effort is expected to take about 3-4 years.
    Both chrysotile and amphibole (including tremolite) fibers have 
been found to be causally associated with asbestosis (a non-cancerous 
fibrotic disease), pleural plaques, lung cancer, and mesothelioma. 
Based on our current knowledge of the literature, no apparent 
differences in toxicity of chrysotile versus amphibole (including 
tremolite) have been reported for the non-cancer diseases (i.e., 
asbestosis and pleural plaques). Current data do suggest a need to 
reexamine quantitative differences in cancer health risks from 
chrysotile and amphibole asbestos (including tremolite). In terms of 
unique health risks posed by the different forms of asbestos, a number 
of researchers have reported that amphibole asbestos is substantially 
more potent than chrysotile asbestos in causing mesothelioma, but this 
pattern may not hold for induction of lung cancer. Tremolite asbestos 
has previously been recognized as a contaminant present in vermiculite 
from Libby, MT. Current information indicates that fibers of the 
amphibole minerals, winchite and richterite, may also be important 
contaminants vermiculite whose toxicity needs evaluation.

    Question 8a. Please discuss in detail any studies conducted by, 
currently being conducted by, or planned by EPA, or by any other 
Federal agency working with EPA, to study tremolite asbestos and/or 
``Libby fiber.''
    Response. EPA has begun an update of its Integrated Risk 
Information System (IRIS) file for asbestos as a result of the 
activities occurring in Libby. This includes a complete update of the 
scientific literature for asbestos, the carcinogenic and non-
carcinogenic effects, exposure pathways, and risk assessment 
methodology. It is normally a three to 5-year process to complete this 
type of review. However, EPA is expediting the process as much as 
possible. EPA is able to expedite this process, in part, because of 
ATSDR's work related to Libby and vermiculite processor sites around 
the country, which has added significantly to our understanding of the 
unique situation in Libby and has improved our understanding of 
asbestos exposure and toxicity. In addition, EPA is regularly 
consulting with ATSDR on other initiatives relating to asbestos 
sampling, analysis and risk assessment. EPA has also actively met and 
communicated with multiple Federal agencies on these issues, including 
USGS, MSHA, CDC, NIST, NIOSH, and CPSC. These meetings should ensure 
better coordination and understanding of our goals and needs regarding 
asbestos and human health issues.
    As part of this update and the establishment of differences between 
tremolite asbestos and chrysotile asbestos, in May 2001, EPA sponsored 
a Public Forum on asbestos minerals. Expert scientists, with years of 
research experience, discussed the current literature base for asbestos 
exposure, toxicity, and risk assessment. Additionally, EPA hosted a 
Peer Consultation meeting on February 25-27, 2003, for a panel of 
experts to discuss a revised risk assessment methodology for 
distinguishing the risks of exposure to amphibole asbestos fibers 
(Libby tremolite asbestos) and serpentine asbestos fibers. This 
methodology uses the differences in fiber sizes and shape to 
distinguish toxicologic hazards between the fiber types and provides a 
differential in the slope factor for risk assessment between the fiber 
types.

    Question 8b. Please indicate how the presence of tremolite asbestos 
and/or ``Libby fiber'' is a factor in the unique situation in Libby, 
Montana.
    Response. EPA funded ATSDR to review the health statistics for 
Libby residents. This review found that the rate of asbestos-related 
mortality in the community is 40 times higher than the average in 
Montana and 80 times higher than the national average. ATSDR also 
conducted an evaluation of the health of Libby residents, providing 
chest X-rays, breathing tests, and interviews to characterize the 
potential exposures and health of the population. The ATSDR study 
concluded that a substantial segment of the population has asbestos-
related scarring, lung abnormalities or impaired breathing. Five 
percent of these impacted residents could identify no potential route 
of exposure, other than having lived in the Libby Valley.
    In addition to these health impacts, Libby differs from other sites 
with amphibole asbestos contamination for other reasons. The Libby mine 
was the first and, for many years, the world's largest producer of 
vermiculite ore. EPA estimates that vermiculite production may have 
exceeded 6 million tons during the years that W.R. Grace owned the 
mine. This ore was milled and processed in Libby, which means much of 
the asbestos was removed from the product, and stayed in Libby. This 
waste found its way into homes, school yards, gardens, road beds and 
many other places in the community, where people continued to be 
exposed for decades.
    As a point of clarification, contrary to recent press reports, EPA 
has gathered a large amount of information from W.R. Grace and other 
sources in order to identify potential risks related to vermiculite 
insulation. The Agency has used this data to pursue the cleanup work 
underway at Libby and 22 contaminated processor sites which used Libby 
ore.

    Question 9. Please also discuss EPA's previous experience using a 
declaration of a public health emergency as a means to garner specific 
health care resources for a community like Libby, if such a declaration 
has ever been made.
    Response. The EPA has no experience in using the public health 
emergency determination under Superfund. The Agency determined that the 
multiple sources of potential asbestos exposure in Libby could all be 
addressed under the single Superfund response authority, and that there 
was no need or reason to use this approach, when the authority for 
quick response action was so clear.

    Question 9a. Please indicate the process for requesting that a 
second declaration be declared in Libby for the separate purpose of 
garnering health care resources in Montana.
    Response. Declaration of such an emergency by EPA would not 
increase available health care resources in Montana. Similarly, EPA is 
not aware of other agencies having authorities under which added 
resources would become available through the declaration of an 
emergency of this type. For example, when the Secretary of Health and 
Human Services declared a public health emergency after 9/11, that 
declaration provided added flexibility in the use of funds Congress 
appropriated specifically for the 9/11 response. The emergency 
authorities did not, however, increase the amount of funding available 
for response efforts. (In the case of HHS, Congress has authorized but 
not funded an account to be used in public health emergencies.)

    Question 9b. Please detail any communications EPA has had with 
Agency for Toxic Substances and Disease Registry (ATSDR) regarding the 
impacts of declaring a public health emergency on the provision of 
health care resources to the residents of Libby, Montana.
    Response. In the 23-year history of the provision, EPA has never 
made a determination that a public health or environmental emergency 
exists to invoke CERCLA's exception to the general ``product'' rule, 
CERCLA Sec. 104 (a)(1)(4). In the part of the statute establishing 
ATSDR, CERCLA separately provides that ATSDR may, ``in cases of public 
health emergencies . . . provide medical care and testing to 
individuals. . . .'', CERCLA Sec 104 (i)(1)(D).
    EPA has worked closely with ATSDR and other parts of the Department 
of Health and Human Services (HHS) regarding the health of Libby 
residents, and has consulted with them on several occasions regarding 
this particular provision of CERCLA. EPA and ATSDR agree that EPA's 
decision to invoke the ``emergency'' provision of 104(a)(1)(4) to 
support a removal action, would not pre-determine the exercise of other 
CERCLA authorities related to public health emergencies under section 
104(i)(1)(D) and (E). At the time the Action Memorandum Amendment was 
signed in May 2002, ATSDR advised EPA, for reasons unrelated to any 
perceived nexus between these two provisions, that the substantial 
health screening and monitoring services being provided the residents 
of Libby would not be affected by whether EPA invoked the emergency 
removal authority. ATSDR already has the necessary authority to conduct 
medical monitoring and the range of other activities it has been 
undertaking in Libby.

    Question 9c. Please discuss what EPA's understanding is of the real 
resources that are available to a community like Libby, if such a 
declaration could be granted.
    Response. A declaration of an emergency by EPA would not increase 
the amount of funding available from EPA, over and above the 
significant amounts now dedicated to clean up in Libby. Similarly, EPA 
is not aware of other agencies having authorities under which added 
resources would become available through the declaration of an 
emergency of this type. For example, when the Secretary of Health and 
Human Services declared a public health emergency after 9/11, that 
declaration provided added flexibility in the use of funds Congress 
appropriated specifically for the 9/11 response. The emergency 
authorities did not, however, increase the amount of funding available 
for response efforts. (In the case of HHS, Congress has authorized but 
not funded an account to be used in public health emergencies).
Tenmile, Montana, Cleanup
    Question 10. Please give me an update on the status and progress of 
the EPA's clean-up efforts at Tenmile, near Helena, Montana. In your 
response, please indicate whether your the Agency has and/or will 
receive adequate resources for this project?
    Response. EPA Region 8 is making steady progress at the Upper 
Tenmile Creek NPL Site. The Project Manager finalized the Record of 
Decision for the site on June 28, 2002. EPA plans to remove and dispose 
of contaminated soils, and conduct repair/reclamation work in 2003 at 
the following locations: 8 residential properties in Lower Tenmile 
Creek; Tenmile Road; Little Lilly and Lee Mountain Mines; and 
residential properties in Rimini.
    In support of these activities, EPA HQ has provided the Region with 
$3.7 million for fiscal year 2003. EPA expects all work to proceed on 
time, and within budget.
Clean Water and Safe Drinking Water SRF
    Question 11. I am really trying to get my head around where and how 
the EPA is proposing to fund water and wastewater projects in 2004, or 
how they are planning to assist States and local communities with these 
types of projects, particularly small, rural communities. I am very 
concerned about the Administration's proposed cuts to the Clean Water 
SRF program, and the Administration's proposed flat funding for the 
Safe Drinking Water SRF program. Why did your agency propose this?
    Response. The President's 2004 budget proposal actually increases 
the Federal Government's investment in water and wastewater 
infrastructure. Previous Administrations had only committed to funding 
the CWSRF program at $1.212 billion in 2004 and 2005 (a total of $2.4 
billion), with no funding thereafter. The President is proposing to 
extend Federal capitalization through 2011--an additional 6 years, at 
$850 million per year, for a total of $6.8 billion. Thus, the 
President's proposal provides $4.4 billion more than previous plans. 
These additional Federal funds, when combined with other CWSRF funding 
sources, are projected to substantially increase the amount of 
assistance provided by the CWSRF program in both the short-term and 
long-term. That has allowed the Administration to increase the CWSRF 
projected long-term target revolving level from $2 billion to $2.8 
billion per year: a 40 percent increase.
    The Administration is proposing to extend Federal support for the 
Drinking Water SRF so it can revolve at $1.2 billion per year, an 
increase of 140 percent over the previous goal of $500 million. To 
realize this increased revolving level, the Administration is proposing 
$850 million for fiscal year 2004 to fiscal year 2018. This proposal 
extends the commitment for the DWSRF well beyond the fiscal year 2003 
authorization period.

    Question 11a. How can cuts and flat funding this year result in a 
greater commitment from the Federal Government to the States over the 
next several years? We should, at a minimum, maintain current funding, 
and moving toward allocating more Federal funding to assist States and 
local communities comply with Federal health, safety and security 
requirements.
    Response. By extending Federal capitalization of the CWSRF and 
DWSRF programs through 2011 and 2018, respectively, at $850 million per 
year, the President's 2004 budget proposal will significantly increase 
the SRF programs' ability to help States and local communities to 
comply with Federal health, safety and security requirements. The 
budget proposal for extending Federal capitalization of the SRF program 
recognizes that replacing the Nation's aging infrastructure requires a 
long-term, sensible approach.
                                 ______
                                 
    Responses of Administrator Christine Todd Whitman to Additional 
                    Questions from Senator Lieberman
Climate Change Program
    Question 1. The fiscal year 2004 EPA budget provides $15 million to 
fund a new climate change program. Please describe EPA's plans for this 
program.
    Response. In total, the Environmental Protection Agency is 
requesting $130 million for the Climate Change program in the fiscal 
year 2004 President's Budget request--an increase of $5 million over 
the fiscal year 2003 enacted level. No increase of $15 million is 
requested to fund new climate change programs.
    The President's Climate Change program reflects a new approach to 
global climate change designed to harness the power of the markets and 
technological innovation. The President has committed America to cut 
greenhouse gas intensity by 18 percent over the next decade. This 
approach supports vital climate change research and ensures that 
America's workers are not unfairly impacted by climate change 
strategies. As we learn more about the science of climate change and 
develop new technologies to mitigate emissions, this annual decline can 
be accelerated. Focusing on greenhouse gas intensity sets America on a 
path to slow the growth of greenhouse gas emissions, and--as the 
science justifies--to stop and then to reverse that growth.
New Source Review
    Question 2. Please provide an update on the status of pending New 
Source Review power plant litigation (on a case-by-case basis). Please 
indicate what new actions have been filed in the past year.
    Response. The chart below provides an update of pending and settled 
New Source Review power plant litigation. In the past year, new actions 
have been filed and settled for the United States vs. PSEG Fossil LLC, 
United States vs. Virginia Electric and Power Company, United States 
vs. Wisconsin Electric Power Company, and the United States vs. ALCOA, 
Incorporated.

            Status of Coal-fired Power Plants Judicial Cases
                               May 6, 2003
------------------------------------------------------------------------
              Case                      Court               Status
------------------------------------------------------------------------
United States v. Illinois Power  Southern District    Case pending--
 Company, and Dynergy Midwest     of Illinois.         Trial scheduled
 Generation, Inc..                                     June 2003.
United States v. Southern        Southern District    Case pending--
 Indiana Gas and Electric Co..    of Indiana.          Trial scheduled
                                                       June 2003.
United States v. AEP...........  Southern District    Case pending--
                                  of Ohio.             Currently in
                                                       Discovery
United States v. Ohio Edison...  Southern District    Case pending--
                                  of Ohio.             Trial concluded
                                                       in March 2003 and
                                                       parties are
                                                       awaiting a
                                                       decision
TVA v. EPA.....................  11th Cir. Court of   Oral Arguments
                                  Appeals.             concluded in May
                                                       2002 and parties
                                                       are awaiting a
                                                       decision
United States v. Duke Energy     Middle District of   Case pending--
 Corp..                           North Carolina.      Currently in
                                                       Discovery and
                                                       trial is
                                                       scheduled for
                                                       September 2003
United States v. Georgia Power.                       Litigation Stayed
                                                       by Court pending
                                                       TVA decision
United States v. Alabama Power.                       Litigation Stayed
                                                       by Court pending
                                                       TVA decision
United States v. Tampa Electric  Middle District of   Settled (February
 Company.                         Florida.             2000)
United States v. PSEG Fossil     District of New      Settled upon
 LLC.                             Jersey.              filing of
                                                       complaint
                                                       (January 2002)
United States v. Cinergy Corp..  Southern District    Currently in
                                  of Indiana.          discovery and
                                                       trial is
                                                       scheduled for
                                                       April 2004
United States v. Virginia        Eastern District of  Settled upon
 Electric and Power Company.      Virginia.            filing of
                                                       complaint (April
                                                       2003)
United States v. Wisconsin       Eastern District of  Settled upon
 Electric Power Company.          Wisconsin.           filing of
                                                       complaint (April
                                                       2003)
United States v. ALCOA, Inc....  Western District of  Settled upon
                                  Texas.               filing of
                                                       complaint (March
                                                       2003)
------------------------------------------------------------------------

Water Trading Policy
    Question 3. In February, EPA finalized its water trading policy. 
Does EPA plan to issue guidance implementing the policy? If so, how 
will EPA involve the public and interested community groups in guidance 
development?
    Response. At this time EPA has no plans to develop a water quality 
trading guidance document. We intend to support implementation of 
trading programs through continued outreach and education, facilitating 
information-sharing among trading programs, and working on technical 
issues such as estimation of nonpoint source pollution reductions.
Mountain Top Mining
    Question 4. What is the status of Federal Government development of 
the Environmental Impact Statement (EIS) addressing mountain top 
mining? When will the EIS be issued in final?
    Response. A general notice was placed in the Federal Registry that 
the Draft Environmental Impact Statement (DEIS) would be available and 
posted on the web on May 30, 2003. Hard copies and CDs were mailed out 
on May 29, May 30, and June, 2, 2003. However, the Notice of 
Availability (NOA) for DEIS in OECA's Office of Federal Activities 
Weekly Federal Registry notice, which starts the official NEPA comment 
period should go out in late June 2003.
    There is no lead agency, rather the five co-leads include EPA, Army 
Corps of Engineers, Fish and Wildlife Service, Office of Surface and 
Mining, and the State of West Virginia. However, EPA and the Corps of 
Engineers--with the assistance of all the co-leads--took the lead role 
overseeing the print job, preparing the Federal Registry Notices and in 
actually distributing the document.
Chemical Site Security
    Question 5. We understand that in the last month EPA has completed 
a review of whether more than 30 high-risk chemical facilities have 
adopted adequate security measures. We also understand that EPA 
Regional officials have conducted their own reviews at additional 
chemical facilities. Please provide us with a copy of any reports or 
summaries of the results of these reviews. Please describe EPA's 
current program to ensure the security of chemical facilities from 
terrorist attack.
    Response. EPA visited a number of chemical facilities to learn more 
about what is being done to protect such facilities against attack or 
sabotage by terrorists or other criminals. The purpose of these visits 
was not to judge the comprehensiveness, effectiveness or adequacy of 
security assessments or upgrades at these facilities. Nor was it to 
enforce EPA regulations or direct facilities to take particular 
actions, such as resolving particular security vulnerabilities. 
Instead, we discussed with facility representatives their ongoing and 
post-9-11 efforts to secure hazardous substances, observed security and 
hazard reduction measures in place to the extent practicable, and 
discussed the available tools and measures for assessing and addressing 
any vulnerabilities that may exist. In many cases, EPA Regional staff 
have, and will continue to discuss chemical site security with other 
facilities as part of their routine course of business.
    It is important to emphasize that the facilities visited represent 
only a very small fraction of the hazardous chemical facilities in the 
United States. As such, EPA has been very cautious in any attempt to 
extrapolate to broad conclusions about all U.S. chemical facilities 
based on our brief discussions and observations. Further, the sites 
visited voluntarily allowed our visit but requested that all 
information be kept confidential. Consequently, no report or summaries 
of these visits were prepared.
    EPA's responsibilities are ``safety'' related and are designed to 
prevent an accidental release of chemicals, not security measures 
intended to prevent or deter a terrorist attack. The Office of Homeland 
Security is the lead on security measures intended to prevent or deter 
a terrorist attack. However, where appropriate EPA has undertaken 
several activities with respect to chemical site security, including:

      Collaboration with chemical trade associations on the 
development of site security guidelines;
      Support of the development and enhancement of the Sandia 
Vulnerability Assessment Methodology;
      Participation with the Center for Chemical Process Safety 
(CCPS) in the development of their Security Vulnerability Assessment 
Methodology and guidebook; we purchased and distributed this guidebook 
to Local Emergency Planners and small and medium businesses throughout 
the United States;
      Initiated and sponsored several training sessions on the 
Sandia VAM and CCPS SVA for State representatives, and small and medium 
businesses; and
      Development of an email outreach system to transmit 
threat level and security advisory information directly to chemical 
facilities.
Enforcement
    Question 6. EPA's fiscal year 2004 budget proposes an increase of 
about 100 positions for the enforcement program to the Administration's 
fiscal year 2003 request. Doesn't this still translate into a reduction 
of nearly 100 positions from fiscal year 2001 levels?
    Response. The Agency's fiscal year 2004 Request includes 1,593.6 
FTE for the enforcement program in the EPM appropriation. The fiscal 
year 2004 Request reflects a reduction of 67.7 FTE from fiscal year 
2001 enacted operating plan levels but includes an overall increase of 
100 FTE over the fiscal year 2003 President's Budget Request.

 ----------------------------------------------------------------------------------------------------------------
                                                                                      FY 2003
                     Program                          FY 2001         FY 2003        Proposed         FY 2004
                                                      Enacted         Request         Enacted         Request
----------------------------------------------------------------------------------------------------------------
Compliance Monitoring...........................           510.0           419.3           487.7           464.4
Civil Enforcement...............................           954.8           848.2           930.6           915.1
Criminal Enforcement............................           196.5           190.9           190.0           190.1
Homeland Security...............................             0.0            24.0            24.0            24.0
    TOTAL.......................................     1,661.3 FTE     1,482.4 FTE     1,632.3 FTE     1,593.6 FTE
----------------------------------------------------------------------------------------------------------------

    Question 7. How does EPA plan to deploy the 100 positions mentioned 
in the previous question?
    Response. The requested increase of 100 FTE will be used to enhance 
inspection and enforcement coverage to better identify and address 
persistent noncompliance in an expanding regulated universe.
    The Office of Enforcement and Compliance Assurance is currently 
conducting an analysis of work force-related challenges. OECA's 
Assistant Administrator has appointed a Workforce Deployment Executive 
Steering Committee, consisting of both OECA Headquarters and Regional 
senior managers, to examine and provide specific recommendations 
regarding the effective deployment of enforcement and compliance 
resources. Based on recommendations from this committee, due out by 
October 2003, OECA plans to target deployment of these resources to 
ensure a holistic and integrated approach to compliance, serving as a 
powerful deterrent to would-be violators.

    Question 8. We understand that EPA is considering bolstering State 
enforcement operations with Federal employees. Please comment on 
whether EPA is considering this action and why. Please describe the 
planned program. How will EPA ensure that the Federal enforcement role 
is not further diminished by this program.
    Response. Though EPA has discussed the possibility of making 
Federal enforcement resources available to the States in the past, 
there is currently no plan to do so in any systematic way. Through 
existing mechanisms such as short-term assignments and 
Intergovernmental Personnel Agreements (IPA), the Agency is able to 
provide assistance to States that want and need it. The Agency will 
address State requests for assistance on a case-by-case basis; ensuring 
that Federal resources go to address significant environmental problems 
or patterns of noncompliance, and that assistance provided to States 
does not compromise EPA's ability to fulfill the Federal enforcement 
role. EPA proposed in the fiscal year 02 and fiscal year 03 budgets a 
State enforcement grant program to assist the States in their 
enforcement efforts.

    Question 9. A 2001 General Accounting Office report found that 
EPA's work force deployment does not ensure consistent enforcement of 
environmental requirements across regions. What steps has the Agency 
taken to respond to this report?
    Response. The Office of Enforcement and Compliance Assurance is 
currently conducting an analysis of work force-related challenges as a 
result of GAO's recommendation. OECA's Assistant Administrator has 
appointed a Workforce Deployment Executive Steering Committee, 
consisting of both OECA Headquarters and Regional senior managers, to 
examine and provide specific recommendations regarding the effective 
deployment of enforcement and compliance resources. The analysis, due 
out by October 2003, will address GAO's concerns and other work force 
deployment challenges.
                                 ______
                                 
    Responses of Administrator Christine Todd Whitman to Additional 
                      Questions from Senator Boxer
    Question 1. Ms. Whitman, in your testimony before this committee on 
February 26, 2003, and in the press you have stated that Environmental 
Protection Agency's (EPA's) America's Children and the Environment 
report is the first about mercury. This was alarming to me as there 
have been numerous reports, studies and publications on mercury over 
the last two decades, reports of which I was shocked to learn that the 
EPA and its Administrator may be unaware. It was also alarming in that 
it seemed to imply that until EPA did a report on the issue, there was 
no good, scientific information on the issue.
    Response. I did not mean to imply that there was no good scientific 
information available or that we were unaware of such information. As I 
said in my testimony and in the press, U.S. EPA's report on America's 
Children and the Environment is the first such annual report from this 
Agency's Office of Children's Health Protection that includes data on 
exposure of children in the United States to mercury. I am aware of 
CDC's reports, and EPA is pleased to be able to publicly highlight in 
our report the most recent available national data from CDC on human 
exposure to mercury in the United States.
    Prior to the Children's Health report, EPA had issued a number of 
documents including its Mercury Study Report to Congress, a 
comprehensive investigation of various aspects of the mercury problem. 
The Report concluded that a plausible link exists between human 
activities that release mercury from industrial and combustion sources 
in the United States and methylmercury concentrations in fish and 
wildlife. The report also provided a quantitative risk assessment of 
women of childbearing age (i.e., between the ages of 15 and 44 years). 
The Report also concluded that mercury poses risks to wildlife, 
including some birds and fur bearing animals such as loons, mink and 
otters. This assessment reflected the Reference Dose evaluation 
available at that time and was based on the older Iraqi dataset. Since 
the Mercury Study Report to Congress, EPA has updated the Reference 
Dose evaluation using three prospective cohort studies (Seychelles, 
Faroes, and New Zealand). Although EPA is now basing its evaluation on 
these newer studies, the Reference Dose has remained at 0.1 mg/kg-day.
    Since the publication of EPA's Mercury Study Report to Congress, 
the Agency has continued its efforts to better understand the 
significance of methylmercury as a public health threat, as well as to 
communicate the results of its assessments.
Issue 1: Centers for Disease Control, Second National Report on Human 
        Exposure to Environmental Chemicals, January 2003.

    Question 2. Ms. Whitman, are you aware that the Centers for Disease 
Control and Prevention has published two National Reports on Human 
Exposure to Environmental Chemicals?

    Question 3. Are you aware that the January 2003 report by the 
Centers for Disease Control and Prevention that found that mercury 
exposure during pregnancy results in over 300,000 babies born each year 
at risk of neurological effects?

    Question 4. Where you aware that this January 2003 report found 
that 1 in 12 women of childbearing age has mercury levels above the EPA 
safe health threshold (i.e., above 5.8 part per billion in blood)?

    Question 5. Are you aware that, nationally, this translates into 
nearly 4.9 million women of childbearing age with elevated levels of 
mercury from eating contaminated fish, and approximately 320,000 
newborns at risk of neurological effects from being exposed in utero? 
(Number of newborns at risk derived by the Clean Air Task Force from 
2000 census data and fertility data from the National Center for Health 
Statistics.)

    Question 6. If you are aware of these reports, why are you making 
misleading statements that your study is the first on mercury and that 
pathways of exposure are unknown? If you are not aware of these 
studies, why not?
    Response to Questions 2-6. We are aware of this report. As stated 
above, EPA's report on America's Children and the Environment is the 
first report from the Agency's own Office of Children's Health 
Protection to include data on exposure of children in the United States 
to mercury. This new CDC data on national exposure to mercury in the 
United States was not available in prior years. As for pathways of 
exposure, EPA has discussed publicly for many years that the primary 
pathway of human and wildlife exposure to methylmercury in the United 
States is through consumption of methylmercury-contaminated fish and 
marine mammals.
Issue 2: Holloway, C., J.B. Adams, M. Margolis, X. Liu, ``Mercury 
        exposure and autism: a case-control study,'' 2001, presented at 
        International Meeting for Autism Research, November 2001, San 
        Diego, California.

    Question 7. Ms. Whitman, are you aware of the 2001 San Diego study 
of 50 autistic children primarily between the ages of 3 and 10, which 
found that maternal consumption of seafood over 2 servings per month 
led to a 3.5fold increased risk of having a child with autism?

    Question 8. Are you aware that, in addition, researchers found that 
in the first 3 years of life, children with autism had significantly 
more ear infections (eight times more often than the control group), 
likely due to weakened immune systems?

    Question 9. If you are familiar with this study, what is this 
Administration doing to publicize the risks from mercury consumption 
and exposure to pregnant women and their developing infants? If you are 
not taking any action to publicize this threat, why not? If you are not 
aware of this study, why not?
    Response to Questions 7-9. I am familiar with this study. EPA's 
activities include significant efforts to communicate the risks of 
methylmercury to those people most at risk, i.e., women of childbearing 
age and their developing fetus, as well as infants and young children. 
In addition, the Agency is providing information to other environmental 
and health professionals who advise women of childbearing age. These 
ongoing actions include:
    (1) Support for State agencies and Tribes in their development of 
fish consumption advisories for sports and subsistence anglers. EPA 
also works with the public to help address the problem of 
methylmercury-contaminated fish. The U.S. EPA has distributed outreach 
materials to the U.S. medical community in multiple languages about 
reducing exposure to contaminants in sport and subsistence caught fish. 
The EPA has also maintained the National Listing of Fish and Wildlife 
Advisories, which includes information on fish consumption advisories 
in waters fished by sport and subsistence populations.
    (2) Development of the Agency's new mercury web site as a major 
resource for the lay public, as well as State and local professionals, 
to use as a source of information on levels of mercury contamination in 
fish.
    (3) Presentations at numerous meetings of State and local 
environmental and public health professionals on the significance of 
mercury contamination and means to reduce mercury contamination and 
exposure.
    (4) Sponsoring national meetings in conjunction with the American 
Fisheries Society hat have described the nature, extent and 
distribution of mercury contamination in fish.
    (5) Sponsoring a national meeting for representatives from States 
and tribes to identify effective risk communication strategies to alert 
people, especially women of childbearing age, to the risks posed by 
consumption of methylmercury in excess of U.S. EPA's Reference Dose.
    (6) Providing leadership in development of the scientific 
evaluation and framework for the global mercury study conducted by the 
United Nations Environment Programme (UNEP) during the past year. EPA 
expects to continue working with UNEP as that organization develops 
risk communication materials pursuant to the new global mercury program 
it initiated in February 2003.
Issue 3: National Academy of Sciences, Committee on the Toxicological 
        Effects of Methylmercury, Toxicological Effects of 
        Methylmercury, National Academy Press, Washington, DC, 2000.

    Question 10. Ms. Whitman, are you aware that the National Research 
Council reaffirmed the risk of mercury exposure in utero to the 
developing nervous system in 2000?

    Question 11. Are you aware that in its study, the National Research 
Council Committee on the Toxicological Effects of Methlymercury 
reviewed the epidemiological and toxicology literature up to 2000?

    Question 12. Are you aware that the committee estimated 60,000 
newborns annually are at risk for neurodevelopment effects due to in 
utero mercury exposure in the United States?

    Question 13. Did you know that one potential effect noted by the 
researchers included learning difficulties once the children reached 
school age?

    Question 14. Did you know that the report also reviewed evidence of 
associations between dietary exposure to methylmercury and abnormal 
cardiac function in both children and adults?

    Question 15. If you are not aware of this study, why not?
    Response to Questions 10-15. I am aware of the National Research 
Council's work and the results.
Issue 4: Agency for Toxic Substances and Disease Registry (ATSDR), U.S. 
        Department of Health and Human Services, ``Toxicological 
        profile for mercury,'' Atlanta, GA, 1999.

    Question 16. Are you aware that in 1999, the Agency for Toxic 
Substance and Disease Registry (ATSDR) reaffirmed the neurotoxic 
properties of methylmercury, confirming that children exposed in utero 
are at greatest risk of neurological damage?

    Question 17. Are you aware that in its Toxicological Profile for 
Mercury, the ATSDR reported that mercury is a developmental toxicant, 
with symptoms observed in offspring exposed in utero ranging from 
delays in motor and verbal development to severe brain damage?

    Question 18. Are you aware that the ATSDR found that while the 
infant may be born apparently normal, the child later shows effects 
that may range from being slower to reach developmental milestones, 
such as first walking and talking, to more severe effects including 
brain damage with mental retardation, incoordination, and inability to 
move?

    Question 19. Are you aware that the severity of these effects 
depends upon the level of mercury exposure and the time of dose?

    Question 20. Are you aware of this Federal Government analysis? If 
you are not aware of the information being published by the Federal 
Government on the effects of mercury on children's environmental 
health, why not? If you are aware of these studies, why have you chosen 
to downplay them and ignore them in your public comments?
    Response to Questions 16-20. Yes, I am aware of ATSDR's activities 
on mercury. EPA has never downplayed scientifically sound information 
on the effects of mercury on children's health. As mentioned above, EPA 
is pleased to be able to publicly highlight in our most recent 
America's Children and the Environment report the best available 
national data from the Centers for Disease Control on human exposure 
(including children) to mercury in the United States.
Issue 5: Grandjean, P., et. al, Cognitive deficit in 7-year-old 
        children with prenatal exposure to methylmercury, 
        Neurotoxicology and Teratology 19(6) 1997: pp. 417-428.

    Question 21. Ms. Whitman, are you aware of the 1997 epidemiological 
study that found cognitive deficits in children with prenatal exposure 
to methylmercury?

    Question 22. Are you aware that in a large study of 1022 children 
exposed to mercury via maternal consumption of pilot whale meat and 
fish in the Faroe Islands in the North Atlantic, researchers observed a 
number of neuropsychological deficits?

    Question 23. Did you know that these mercury-related dysfunctions 
were in the areas of language, attention, and memory, and to a lesser 
extent in visual and/or spatial and motor functions?

    Question 24. Did you know that the authors noted that these 
deficits appear widespread, and are seen at mercury exposure levels 
previously considered to be safe?

    Question 25. If you are aware of this information, why is the Bush 
Administration EPA stating that we need further study before we can act 
to warn people of the risks from mercury emissions and exposure?
    Response to Questions 21-25. I am aware of the study. As noted 
above, EPA is, and has been, taking many actions to alert people of the 
risks from methlymercury exposure, especially regarding the prenatal 
exposures discussed in this specific report.
Issue 6: (Kjellstrom, T.P., et al., 1986, Physical and mental 
        development of children with prenatal exposure to mercury from 
        fish. Stage I: Preliminary tests at age 4; Kjellstrom, T.P., et 
        al., ``Physical and mental development of children with 
        prenatal exposure to mercury from fish,'' National Swedish 
        Environmental Protection Board Reports, Nos. 3080, 3642, 1989. 
        Cited in Committee on the Toxicological Effects of 
        Methylmercury, Toxicological Effects of Methylmercury, National 
        Academy Press, Washington, DC, 2000.

    Question 26. Ms. Whitman, are you aware of the 1986 epidemiological 
study from New Zealand that found developmental delays in children 
exposed to mercury?

    Question 27. Did you know that researchers studied a population of 
935 New Zealand women who reported higher fish consumption during 
pregnancy?

    Question 28. Did you know that when comparing scores on a 
development test at 4 years of age, 52 percent of children born to a 
subgroup of women with the highest mercury exposures had abnormal or 
questionable results, compared with 17 percent of control group 
children?

    Question 29. Did you know that in followup evaluations at 6 years 
of age, the researchers found that maternal hair mercury was associated 
with lower scores on full-scale IQ, language development, visual-
spatial skills, and gross motor skills?

    Question 30. If you and the EPA are aware of this information, how 
can you assert that an issue that we have been studying for two decades 
is an ``emerging'' issue? If you are not aware of this information, why 
not?
    Response to Questions 26-30. I am aware of the study. In terms of 
developing sound scientific information, two decades is a relatively 
short period of time, and in that context mercury is still an emerging 
scientific issue. Every year we continue to develop better data and 
analysis on critical aspects of the problem, such as the extent and 
effects of human exposure, especially low level exposure; and the fate 
and transport of mercury pollution at every level, including locally, 
regionally, nationally and globally.
Issue 7: Hightower, JM, ``Mercury Levels in High-End Consumers of 
        Fish,'' Environmental Health Perspectives doi:10.1289/ehp.5837, 
        2002. Online November 1, 2002.

    Question 31. Ms. Whitman, are you familiar with the San Francisco 
Bay area study that found mercury exposures high among health-conscious 
urban residents?

    Question 32. Did you know that a small-scale study of residents in 
the San Francisco Bay Area found that people with high fish diets had 
significantly elevated mercury levels?

    Question 33. Did you know that of the 123 people tested (a mix of 
physicians, Chief Executive Officers, internet executives, lawyers, 
bankers and others), 89 percent had mercury levels exceeding the level 
recognized as safe by the U.S. EPA and the National Academy of 
Sciences?

    Question 34. Were you aware that 63 had blood-mercury levels nearly 
twice the recommended level, and 19 had blood-mercury levels nearly 
four times the level considered safe?

    Question 35. Did you know that 4 people had levels 10 times greater 
than EPA's safe level? Patients who had high fish diets or who were 
exhibiting symptoms of mercury exposure, including fatigue, headache, 
joint pain, and reduced memory and concentration, were selected to 
participate in the study?

    Question 36. Did you know that mercury levels fell dramatically in 
67 patients that were being followed closely after recommendations to 
eliminate or greatly reduce their fish intake, with a particularly 
significant drop in the first 3 weeks?

    Question 37. Were you aware that some patients were still above the 
EPA safe level 20 weeks and more after curtailing their fish 
consumption?

    Question 38. If you were aware of this study, why has this 
Administration been downplaying the effects and threats of eating 
mercury-contaminated fish? If you were not aware of this and other 
studies demonstrating the elevated levels of mercury in people with 
high fish diets, why not?
Issue 8: Choy, CM, et. al, BJOG: an International Journal of Obstetrics 
        and Gynecology. 109, 2002: pp. 1121-5.

    Question 39. Ms. Whitman, are you aware of the 2002 study that 
shows high mercury levels measured in infertile men and women?

    Question 40. Did you know that the study of 157 infertile couples 
and 26 fertile couples in Hong Kong compared blood mercury levels and 
evaluated possible sources of mercury exposure in couples with high 
levels?

    Question 41. Did you know that researchers found that infertile 
couples had higher mercury levels than fertile couples; infertile males 
with abnormal semen and infertile females with unexplained infertility 
also had higher blood mercury levels than their fertile counterparts?

    Question 42. Did you know that blood mercury concentrations in 
infertile couples also increased with seafood consumption?

    Question 43. If you were aware of this study, why has this 
Administration been downplaying the effects and threats of eating 
mercury-contaminated fish? If you were not aware of this and other 
studies demonstrating the elevated levels of mercury in people with 
high fish diets, why not?
    Response to Questions 30-43. I am familiar with these studies. EPA 
has recognized that adults consuming high intakes of fish may have 
excessive exposure to methylmercury. The Agency has sponsored studies 
among high-fish consuming populations along a number of coasts in 
America to identify sources of pollution, to document the extent of 
mercury contamination of fish and shellfish, and to assist State and 
local government in communicating the dangers posed by excessive 
exposures to methylmercury. EPA scientists have also been highlighting 
the results of the Hightower study in recent conferences of health 
professionals. In January 2001, EPA published a new methylmercury water 
quality criterion that describes the concentration of methylmercury in 
fish that should not be exceeded to protect consumers of fish and 
shellfish among the general population. This is the first time EPA has 
used this approach, a direct result of the scientific consensus that 
consumption of contaminated fish and shellfish is the primary route of 
exposure to methylmercury.

Superfund
    Question 44. Ms. Whitman, the Administration's fiscal year budget 
for Superfund proposes increasing funding to $1.39 billion, a $117 
million increase over fiscal year 2003 when inflation is not included. 
Of this, EPA asserts that $150 million in additional funds will go to 
remedial action. It is unclear from where within the Superfund program 
the additional moneys will come.
    Ms. Whitman, could you please detail for us from what other 
Superfund activities this money will come. Investigations? Clean up 
design? Removal actions? Long-term operation and maintenance?
    Response. The President's budget request for Superfund for fiscal 
year 2004 is $1.39 billion, an increase of $117 million over the fiscal 
year 2003 request. This increase will provide $150 million in 
additional funding for Superfund cleanup construction projects. The 
President's fiscal year 2003 request included a one-time $75 million 
add for building decontamination research related to homeland security 
that is not being requested in fiscal year 2004. The fiscal year 2004 
request slightly increases investigations, cleanup design, removal 
actions, or long-term operation and maintenance.

    Question 45. According to a Resources for the Future Report to 
Congress, funding Superfund at 1.39 billion will result in a short fall 
of $200 million. Likewise, an October 2002 IG report documented that 
EPA did not fund approximately $200 million of Regional requests. Seven 
sites EPA identified as high priority by EPA because of the risks to 
human health and the environment received no funds, while 48 others 
were underfunded. Ms. Whitman, what is EPA doing to ensure that 
communities get the money they need to clean up these toxic sites?
    Response. For fiscal year 2004, the Administration has requested an 
increase to the Superfund budget that would provide an additional $150 
million for Superfund construction funding. In addition to simply 
requesting more money, EPA continues to:

      Pursue responsible parties to conduct the cleanup work;
      Manage all available Superfund resources by deobligating 
resources from prior years that are not being put to use;
      Prioritize funding to clean up construction projects that 
are currently underway and need additional resources to complete work 
to ensure that contamination is not left exposed and to avoid 
unnecessary shut-down and startup costs;
      Review sites with the EPA National Risk-based Priority 
Panel to assess their relative risk and establish priorities for 
allocating resources. Priority is given to sites that present the 
highest risk to human health and to those sites that are nearing 
completion; and,
      Use emergency response or removal actions to mitigate the 
immediate threats to people if we identify immediate threats to people 
living near a site.

    Question 45a. Ms. Whitman, what is EPA doing to ensure that 
communities get the money they need to clean up these toxic sites? If 
EPA no longer designates these seven sites as high priority, please 
explain the rationale for the changed designation and summarize the 
information that EPA received in support of, and in opposition to, this 
change.
    Response. EPA established the National Risk-based Priority Panel in 
1995 to review and evaluate Superfund cleanup construction projects 
that are expected to be ready to proceed during a given fiscal year. 
The Panel evaluates projects based on their relative risk to human 
health and the environment, and other factors including the site 
schedule for achieving construction completion and the potential that 
the work could be accomplished by responsible parties. Sites are 
selected for funding based on their actual readiness to proceed to 
construction, their relative risk to human health, the site completion 
schedule, and the results of the enforcement screening process.
    The seven projects that were not funded during fiscal year 2002 
while remaining a priority were not among the highest priority sites 
considered for funding during fiscal year 2002 and they were not near-
term candidates for construction completion. These sites remain on the 
Superfund National Priorities List and EPA will continue to assess 
their relative risk along with cleanup construction projects at other 
sites that are expected to be ready to proceed in subsequent fiscal 
years.

    Question 45b: If they are still listed as high priority sites, 
please explain why they received no funding from EPA in fiscal year 
2002.
    Response. EPA used the results of the National Risk-based Priority 
Panel to identify the sites that posed the highest risk to human health 
and those sites that were nearing completion, and selected those sites 
for funding. The seven sites that were not funded ranked lower in terms 
of their relative risk to human health when compare to sites selected 
for funding and they were not near term completion candidates. These 
sites remain a priority for EPA and we will continue to assess their 
relative risk along with cleanup construction projects at other sites 
that are expected to be ready to proceed in subsequent fiscal years 
until they receive the required resources for construction.

    Question 46. Ms. Whitman, in your opening statement you state that 
the Administration has a ``long-standing commitment to clean-up 
contaminated sites.'' However, your budget proposes to flat line 
cleanups at 40 per year, down significantly from your estimate of 75 
for 2001, and less than half the average of 87 cleanups completed per 
year in the last 2 years of the Clinton Administration.
    Ms. Whitman, can you please explain to us how cutting in half the 
number of clean-ups completed translates into a commitment to cleaning 
up contaminated sites?
    Response. EPA remains committed to completing cleanups at Superfund 
sites. As of October 1, 2002, EPA has achieved construction completion 
at 846 of 1498 NPL sites (56 percent) and had taken substantial cleanup 
action at over 90 percent of NPL sites.
    In the early years of Superfund, it was difficult to show cleanup 
progress and the program had to respond to legitimate complaints that 
the program did not seem to be working. To show outputs, EPA developed 
and put a premium on achieving ``Construction Completions''. This has 
been a very beneficial metric of forward progress.
    The NPL sites that are currently not construction complete are 
typically larger, more complex and more time consuming than the ones 
that have been cleaned up in the past. Many more of the sites on the 
National Priorities List that are not construction complete are 
``megasites''. In short, there are few low hanging fruit left.
    The Administration is concerned about the declining number of sites 
that are finishing construction and has requested an additional $150 
million in fiscal year 2004 targeted toward an additional 10-15 
construction starts, with a projected 7 to 10 additional completions 
during the 2-year period of fiscal year 2005/6.
    EPA has begun to develop measures that may lead to a better 
understanding of the actual benefits to human health and the 
environment from cleanups. For instance, EPA's new metric for sites 
where EPA has eliminated exposure pathways (human exposures and 
migration of contaminated groundwater under control) will show that 
people are not being exposed to site contaminants from certain sites. 
Exposure reduction has a strong intuitive link to better health 
outcomes. EPA continues to explore ways to link construction progress 
outputs (e.g., construction completion) to human health and 
environmental protection outcomes to help focus our resource allocation 
decisions. EPA is sponsoring the National Advisory Council on 
Environmental Policy and Technology (NACEPT) that is having a public 
dialog on, among other things, measuring program performance that will 
have outcome elements.

    Question 47. Ms. Whitman, the Administration frequently asserts 
that site cleanups underway are more complex sites than previous site 
cleanups. However, EPA has been cleaning up extremely complex sites for 
decades and I am unaware of any evidence indicating that the complexity 
of sites has changed radically over the last 2 years.
    Please provide a detailed explanation of what constitutes a more 
complex site. In addition, please summarize the information that your 
Agency has received that indicates such a radical change in site 
characteristics has occurred over the last 2 years and provide such 
information to this committee.
    Response. Many factors are included in complexity, which affect the 
duration and cost of cleanups. Examples of some such factors include: 
contaminant characteristics, presence of multiple contaminants, area 
and volume of contamination, multi-media contamination, ecological 
issues, groundwater issues, remedial technology(ies) necessary, site 
location, proximity to populations, PRP cooperation, presence of 
multiple PRPs, and other stakeholder interests (States, Tribes, 
communities, natural resource trustees). While we have not attempted to 
assess all the interrelated characteristics that describe complexity on 
a site-specific basis, we have a few surrogate measures that 
demonstrate how the current universe of non-construction complete NPL 
sites is more complex than NPL sites that are construction complete.
    For example, at the end of fiscal year 2001, 21 percent of the 
remaining non-construction completed universe of final NPL sites were 
Federal facility sites. The nature of contamination at these sites and 
their vastness defines these sites as complex. At the end of fiscal 
year 2001, only 4 percent of construction completed sites were Federal 
facilities. Second, we observed that, of 124 sites identified as mega-
sites in fiscal year 2001, 75 percent were not construction complete. 
Mega-sites are non-Federal facility sites with total cleanup costs 
estimated at $50 million or more. Finally, we noted in fiscal year 2001 
that the number of operable units per non-construction complete site 
was more than 1 to more than 2 times greater than at sites that had 
achieved construction completion. An operable unit is a means by which 
EPA may divide a site into smaller scale components to address the 
multiple aspects of site cleanup.

    Question 49. Ms. Whitman, in April 2002, Marianne Horinko, 
Assistant Administrator for the Office of Solid Waste and Emergency 
Response, testified before this committee under oath. During that 
testimony she indicated that if the Fund were not ``robust'', the 
Administration would revisit reinstating the polluter fees. Her exact 
quote was:
    ``I'm certainly not ruling out the tax. The Administration this 
fiscal year felt that in the 2003 budget we still had a relatively 
robust funding source in the remaining trust funds, that we did not 
have to propose the Superfund tax, but we will look at that again in 
2004 and see if we need to revisit that position.''
    As we can see from your own budget documents, there is so little 
money left in the Trust Fund that taxpayers would be picking up more 
than 79 percent of cleanup costs, while polluters only pay 21 percent, 
in fiscal year 2004. As you know, this was exactly the reverse in 1995, 
when taxpayers paid 18 percent of the costs and polluters 82 percent.
    Ms. Whitman, as the Trust Fund clearly is no longer ``robust,'' did 
the Administration reconsidered reinstating the polluter fees? If not, 
can you please explain Ms. Horinko's comments? If reinstating the fees 
was considered, why was it not included in the President's budget 
request?
    Ms. Whitman, does EPA support reinstating the polluter fees or do 
you support shifting the full burden of the federally funded portion of 
the program to the general taxpayer?
    Response. Viable polluters pay for their share of Superfund 
cleanup, either through cost recovery or by cleaning up the sites 
themselves. This results in responsible parties cleaning up 
approximately 70 percent of Superfund sites. Private party settlement 
commitments typically range more than $1 billion annually for Superfund 
cleanup. EPA cleans up the remaining 30 percent of sites, which are 
``orphan sites' where the polluter is no longer in existence or unable 
to pay for cleanup.
    As you know, the President's Fiscal Year 2004 Budget Request 
includes an increase of $150 million in construction cleanup funding, 
and does not recommend imposing new taxes. As in past years, we are 
confident that Congress will appropriate the correct mix of trust fund 
and general fund resources that will ensure adequate funding for this 
vital program.
    EPA strongly supports the polluter pays principle and continues to 
make all viable polluters pay for or perform the cleanup of their 
sites. Approximately 70 percent of Superfund cleanups are performed by 
the parties responsible for hazardous waste sites. The remaining sites 
either have no identified parties responsible for the cleanup, or the 
parties responsible for the cleanup are bankrupt or otherwise 
financially unable to contribute to the cost of cleanup. Decisions on 
whether to fund the Superfund program from Trust Fund or General 
revenues are made by Congress in the annual congressional 
appropriations process.
    Historically, there is no relationship whatsoever between the 
balance in the Superfund Trust Fund and the level of congressional 
appropriations. For the past 5 years, Congress has provided relatively 
steady appropriations at $1.3 to $1.5 billion for the program. In fact 
the U.S. Senate, under both Republican and Democratic leadership in the 
last session of Congress, funded Superfund at approximately the same 
level and largely out of general revenues. The President's Budget 
anticipated that Congress would continue to provide appropriate funding 
for the Superfund Program.
Children's Environmental Health
    Question 50. Ms. Whitman, one of my greatest concerns is ensuring 
that we protect children's environmental health. Information on the 
state of children's health and the threats they face is critical to 
protecting them and determining our funding priorities. As you know, I 
have been trying to get EPA to release their report on the state of 
children's health since June 2002, when OMB asked to review it. We were 
happy to see EPA finally release the report on Monday after the media 
leaked a portion of it. My office has been told repeatedly that the 
reason the report was delayed was that it had to undergo an interagency 
review that went beyond OMB.
    Ms. Whitman, please explain the review process the report underwent 
from June 2002 until its release on February 24, 2003, including the 
agencies that reviewed the report.
    Was the interagency review part of the peer review? If so, why 
aren't the additional reviewers listed in the report? If not, was there 
any external, independent peer review of the final report?

    Question 51. Although we were glad to see the America's Children 
and the Environment report, we were disturbed by the information in it. 
The statistics on the state of children's health are alarming. Here are 
a few of the facts:
      Childhood asthma has doubled since 1980.
      Children's cancer incidence has increased more than 20 
percent since 1975.
      Nearly one million children live within one mile of a 
Superfund toxic waste site.
      Kids' risk of cancer from hazardous air pollutants is 1-
in-100,000, 10 times higher than EPA's benchmark cancer rate of 1-in-
1,000,000.
      Eighteen percent of children, more than 1.3 million 
children, live in counties where their risk of cancer from hazardous 
air pollutants in greater than 1-in-10,000.
      EPA believes that there is ``essentially no `safe' level 
of lead.''
      In 1999-2000 the median concentration of concentration of 
lead in blood was 2.2 micrograms per deciliter.
      There is no safe level of mercury in the blood.
      About 50 percent of women of childbearing age in the 
United States have at least 1 part per billion of mercury of in their 
blood.
      In 2001, 44 States issued one or more advisories to warn 
people about elevated concentrations of mercury in noncommercial fish.
      6 out of every 1000 children have been diagnosed with 
mental retardation.
    Please detail the actions the Administration is taking to decrease 
children's exposure to pollution in each of these areas?
    Response. The Administration is involved in a number of activities 
to protect children from environmental health risks. Children's 
environmental health is a priority of this Administration. The 
President has a task force that focuses solely on environmental health 
risks and safety risks to children. The task force provides the 
President with recommendations on Federal policy based on an 
interagency collaborative process. Examples of such activities 
supported by the Administration include:
                                 asthma
    The U.S. Environmental Protection Agency (EPA) and the Centers for 
Disease Control (CDC) co-chair the Asthma Workgroup of the President's 
Task Force on Environmental Health Risks and Safety Risks to Children. 
In 1999, the Task Force issued Asthma and the Environment: A Strategy 
to Protect Children to develop further understanding of how 
environmental factors relate to the onset of asthma and exacerbation of 
asthma symptoms. This report serves as the framework for collaboration 
among the Department of Health and Human Services (HHS), EPA and other 
Federal agencies.
    The report made four recommendations for action:
    1. Strengthen and accelerate focused research into the 
environmental factors that cause or worsen childhood asthma.
    2. Implement public health programs that improve use of scientific 
knowledge to prevent and reduce the severity of asthma symptoms by 
reducing environmental exposures.
    3. Establish a coordinated nationwide asthma surveillance system 
for collecting, analyzing, and disseminating health outcome and risk 
factor data at the State, regional and local levels.
    4. Identify the reasons for and eliminate the disproportionate 
burden of asthma among different racial and ethnic groups and those 
living in poverty.
    The Administration is addressing these recommendations through a 
variety of activities:
    EPA funds intramural and extramural research into the environmental 
factors that cause or worsen asthma.
    In addition to funding independent investigators, EPA and the 
National Institute of Environmental Health Sciences (NIEHS) established 
12 Centers for Children's Environmental Health and Disease Prevention 
Research dedicated solely to the study of children's environmental 
health hazards. Several of the Centers are looking at the relationship 
between environmental contaminants and asthma. The Centers translate 
scientific findings into effective intervention and prevention 
strategies for communities to reduce the burden of asthma in 
disproportionately impacted populations.
      EPA commissioned the National Academy of Sciences to 
convene an expert panel to assess the state of the science surrounding 
the relationship of indoor environments to the development and 
exacerbation of asthma. The panel's report, Clearing the Air: Asthma 
and Indoor Air Exposures, issued in 2000 has informed the scientific 
basis for the Agency's public heath outreach and education program.
    In response to the growing asthma problem, EPA created a national, 
multi-faceted asthma education and outreach program. This comprehensive 
program stresses the importance of incorporating environmental 
management into asthma education, outreach and management strategies 
with special emphasis on disproportionately impacted audiences. EPA 
implements comprehensive asthma management programs through 
partnerships with national organizations and in collaboration with the 
National Asthma Education and Prevention Program (NAEPP), the primary 
vehicle for coordinating asthma activities across the Federal 
Government.
    The components of EPA's national asthma education and outreach 
program to fight childhood asthma include:
      Through a national awareness campaign, EPA is working to 
raise awareness and prompt community action about asthma through a 
comprehensive, research-based, public service, media campaign launched 
in collaboration with the Ad Council in March 2001. The campaign seeks 
to raise public awareness about asthma and encourage parents of 
children with asthma to take steps to prevent asthma attacks EPA is 
developing an assessment of the media campaign to measure its effects 
on the frequency of asthma attacks. EPA launched the second wave of the 
campaign in June 2003.
      EPA provides funds to national organizations in the 
health care community to raise awareness of environmental asthma 
management and incorporate environmental controls into clinical 
practice and standards of care. Activities to date include:
      American Respiratory Care Foundation educated 600 
pediatric patients and their families and trained 2,400 respiratory 
therapists, ultimately educating up to 15,000 asthma patients.
      Bureau of Primary Healthcare trained over 150 health care 
providers in health clinics nation-wide, reaching approximately 25,000 
asthma patients.
      Asthma and Allergy Foundation of America trained 360 
health care professionals to provide integrated environmental trigger 
control and asthma management education to patients.
    EPA provides funds to national organizations to support school and 
daycare programs that teach children, staff, and parents about asthma 
management, including the control of indoor environmental triggers.
      EPA's Indoor Air Quality Tools for Schools program aims 
to improve indoor air quality and asthma education in the nation's 
schools. The program helps school personnel assess, resolve, and 
prevent indoor air quality problems and reduce exposure to asthma 
triggers in schools.
      New guidance on school design has been developed and will 
soon be available to the public. The IAQ Design Tools for Schools web 
resource complements the existing program, encouraging schools to use 
high performance building goals, and addresses the importance of 
healthy school environments.
    To educate families about how to control indoor environmental 
triggers including allergens and secondhand smoke in their homes, EPA 
manages a national competitive grants program for community based in-
home asthma education. In addition, EPA developed a national Smoke-Free 
Home Campaign to educate and motivate parents to make their homes and 
cars smoke-fre Data from the CDC indicate that cotinine values at the 
90th percentile, representing the most highly exposed 10 percent of 
children, declined by 18 percent between 1988-1991 and 1999-2000. 
Continine blood levels are a measure of exposure to second-hand smoke.
      EPA continues to promote Air Quality Index (AQI) 
forecasting by State and local air agencies as a way to help people 
with asthma plan their outdoor activities to reduce exposure to air 
pollution, which can be a significant asthma trigger. AQI forecasts are 
carried on the AIRNOW Web site (http://www.epa.gov/airnow), and in USA 
Today and on The Weather Channel, as well as, local media across the 
country.
      EPA, in collaboration with other Federal Agencies, is 
supporting the Environmental Council of States (ECOS) and the 
Association of State and Territorial Health Officials (ASTHO) to 
develop and implement with State health and environmental agencies a 
national asthma action agenda to reduce environmental triggers of 
childhood asthma. Forty-one States have participated in the process.
      In 2003, EPA plans to request proposals from State health 
and environmental agencies to support demonstration projects that will 
use existing asthma surveillance data to design and implement 
strategies and actions to minimize environmental factors that 
contribute to asthma in children.
    In addition, HUD's Healthy Homes program is conducting research to 
uncover the conditions in housing that may contribute to childhood 
asthma.
    By integrating sound science, effective public health education and 
outreach programs, and better measurement of health outcomes, the 
Administration is committed to improving the quality of life for 
children with asthma.
                            childhood cancer
    The President's Task Force on Environmental Health Risks and Safety 
Risks to Children has been involved in a number of successful projects 
related to childhood cancer:
      The National Cancer Institute is the lead agency for 
developing the Childhood Cancer Research Network. The proposed network 
will establish a national cohort of children with cancer in order to 
study the etiology of cancers in children and participate in childhood 
cancer research projects.
    EPA proposed Supplemental Guidance for Assessing Cancer 
Susceptibility Resulting from Early Life Exposure to Carcinogens to the 
Draft Guidelines for Carcinogen Risk Assessment describing possible 
approaches that could be used to assess risks resulting from early life 
exposure to potential carcinogens. Public comment on the draft 
Supplemental Guidance and the draft Guidelines for Carcinogen Risk 
Assessment ended on June 2, 2003.
                               superfund
    The Superfund program is making significant progress at protecting 
children by:

      routinely identifying immediate threats to people living 
near a site.
      conducting emergency response or removal action (such as 
removing containers of hazardous waste or providing safe drinking 
water) to address immediate threats, and
      relocating people, if necessary.

    Significant progress has been made in cleaning up sites, and today 
57 percent of the sites on the National Priorities List (NPL) are 
construction complete. Over 90 percent of the NPL sites have already 
had significant cleanup work completed.
    Children are always considered a separate, sensitive population for 
risk assessments conducted at sites and for determining site cleanup 
levels. If the most significant risks are determined to be those risks 
posed to children, the site remedies are designed to protect those 
children. As part of the risk assessment process, we ensure the 
toxicity values used are protective of children's increased 
sensitivity.
    If children are present near a site, extra efforts at community 
outreach and education are taken. These efforts often involve visiting 
schools to inform children of ways to reduce exposures and distributing 
informational fact sheets to the community on ways to protect 
children's health.
    In addition, EPA, the Agency for Toxic Substances and Disease 
Registry (ATSDR), and the Association of Occupational and Environmental 
Clinics worked together to develop the Pediatric Environmental Health 
Specialty Unit (PEHSU) Program, which is a national resource for 
pediatricians, other health care providers, Federal staff, and the 
public to reduce environmental health threats to children, improve 
access to expertise in pediatric environmental medicine, and strengthen 
public health prevention capacity. The key focus areas of the PEHSUs 
are medical education and training, telephone consultation, and 
clinical specialty referral for children who may have been exposed to 
environmental hazards. Eleven of these units are operating in the 
United States.
    An example of Superfund's work are the significant reductions in 
children's blood lead levels resulting from the cleanup of the Oronogo/
Duenweg Mining Belt Site. In 1991, the Missouri State Health Department 
and ATSDR determined that over 14 percent of children in the area had 
blood lead levels greater than or equal to 10 mg/dL. After cleanup at 
over 2,500 homes, blood lead levels in children living in the same area 
that were greater than or equal to 10 mg/dL had declined to 2 percent 
in 2000.
                        hazardous air pollutants
    According to the 1996 National Air Toxics Assessment (NATA), 6 
percent of children or 2.4 million children live in counties where the 
risk of cancer from hazardous air pollutants is one in 10,000. The risk 
to the average child nationally is 53 in a million. People exposed to 
hazardous air pollutants at sufficient concentrations and durations may 
have an increased chance of getting cancer or experiencing other 
serious health effects. These health effects can include damage to the 
immune system, as well as neurological, reproductive (e.g., reduced 
fertility), developmental, respiratory and other health problems. 
Children and the elderly are especially susceptible to many of these 
health effects.
    Under the Clean Air Act (CAA) the Agency is involved in a number of 
activities to reduce the potential exposure of children to hazardous 
air pollutants. These activities include:
    1. Issuing regulations that impose source-specific standards 
limiting emissions of hazardous air pollutants. Existing source-
specific standards that have been promulgated to date have reduced air 
toxic emissions by nearly 2.1 million tons--a reduction of nearly 35 
percent from pre-clean air act estimates.
    2. National, regional, and community-based initiatives that are 
multi-media and that focus on areas where people are at the greatest 
risk. These activities support State, local and tribal activities and 
include:
      Encouraging and supporting area-wide strategies developed 
by the State, tribal or local air pollution control agencies.
      Support local and State activities consistent with the 
Integrated Urban Air Toxics Strategy.
      Addressing multi-media aspects of air toxics exposure 
(e.g., the Great Waters program).
    3. The NATA is helping the Agency identify areas of concern, 
characterize risks, and track progress toward meeting the air toxics 
program goals. The NATA activities include:

      developing and expanding air toxics monitoring,
      improving and periodically updating emissions 
inventories,
      multi-media and exposure modeling,
      continuing research on health effects,
      determining exposure to both ambient and indoor air 
toxics, and
      improving exposure and risk assessment tools.

    4. Education and outreach activities. In light of the scientific 
complexity inherent in air toxics issues, the Agency recognizes that 
the success of the overall air toxics program depends, in part, on the 
Agency's ability to communicate effectively with the public about air 
toxics risks and activities necessary to reduce those risks. Much of 
EPA's outreach material can be found on the Agency's Air toxic website 
(http://www.epa.gov/ttn/atw/)
                             lead poisoning
    The Administration's efforts to reduce lead hazards include 
collaboration and coordination among Federal agencies (EPA, HUD, HHS, 
and DOJ), development of regulations when necessary, and public 
education. Such collaborative efforts have resulted in a great success 
in this area. Recent estimates by CDC show that the number of children 
with blood lead levels of 10 mg/dL or greater declined from 890,000 in 
1991-1994 to 434,000 in 1999-2000 (please refer to the Second National 
Report on Human Exposure to Environmental Chemicals (CDC), National 
Health and Nutrition Examination Survey (1999-2000), and www.cdc.gov/
nceh/lead/research/kidsBLL.htm.)
    In January 2002, EPA and Department of Housing and Urban 
Development (HUD) announced the broadest lead disclosure settlement 
ever with one of the nation's largest property management firms, the 
Denver-based Apartment Investment and Management Co. (AIMCO). AIMCO 
agreed to test and cleanup lead-based paint hazards in more than 
130,000 apartments in 47 States and Washington, DC.
    The President's Task Force on Environmental Health Risks and Safety 
Risks to Children, co-chaired by EPA and HHS, published Eliminating 
Childhood Lead Poisoning, A Federal Strategy Targeting Lead Paint 
Hazards in 2000. Its recommendations include 1) target grants for low 
income housing and leverage the private sector to control lead paint 
hazards; 2) improve early intervention by expanded blood screening; 3) 
conduct research to improve prevention and promote innovative ways to 
bring down lead hazard control costs; 4) implement monitoring programs.
    The Administration has requested increased funding for lead hazard 
control programs at HUD, now at its highest level ever, which will 
protect more children than ever before. The Administration has also 
proposed a new $25 million Innovative Lead Hazard Reduction Grant 
program in 2004 for HUD. In addition, the Administration has proposed 
an additional $10 million for HUD's regular lead hazard control grant 
program in 2004, which is $10 million more than requested in 2003.
    Operation Lead Elimination Action Program (LEAP), developed by HUD 
and consistent with the President's Task Force's strategy, leverages 
additional private sector resource for local lead hazard control 
activities. In 2002, Congress appropriated $7 million for this program, 
which will leverage an additional $17 million in private sector funding 
for local lead hazard control programs. In 2004 the Administration has 
requested an additional $4 million for a total of $10 million for this 
program.
    In October 2002, HUD awarded $94.7 million in grants to State and 
local governments and others to fund programs to eliminate lead-based 
paint hazards and other health threats in low-income housing. The 
grants will also be used to leverage additional private sector 
resources, promote educational and training programs and conduct 
research on innovative methods of lead hazard identification and 
control.
    Most recently, EPA launched a Lead Poisoning Awareness Campaign 
along with the National Council of La Raza (NCLR) to raise awareness 
among Latino parents of the importance of routine lead screenings for 
their children.
                                mercury
    U.S. EPA is concerned about the seriousness of the threat of 
mercury pollution to the environment, and the seriousness of health 
damage resulting from human exposure to mercury. Under the Clear Skies 
proposal, mercury emissions from coal-fired power plants would be 
capped by almost 50 percent by 2010 and by nearly 70 percent in 2018. 
The Agency has also modified water quality criterion to incorporate new 
scientific information about mercury. EPA has been in the forefront of 
establishing health-protective recommendations based on the most recent 
scientific evaluations of the toxicity of methylmercury to the 
developing brain, as well as evaluations of other adverse effects on 
both children and adults.
    EPA is currently regulating mercury emissions from municipal waste 
and medical waste incinerators. EPA regulations require that these two 
types of sources reduce their emissions by over 90 percent. These two 
sources were once the largest sources in the United States after coal 
fired electric utility boilers.
                           mental retardation
    EPA and the National Institute of Environmental Health Sciences 
established 12 Centers for Children's Environmental Health and Disease 
Prevention Research dedicated solely to the study of children's 
environmental health hazards. These unique centers perform targeted 
research in children's environmental health and translate scientific 
findings into intervention and prevention strategies by working with 
communities. Several of the Centers are looking at the relationship 
between environmental contaminants and developmental disabilities.

    Question 52. I was particularly shocked to see language in the 
report America's Children and the Environment that appeared to 
backtrack on the accepted fact that children are especially vulnerable 
to the effects of environmental contaminants due to children's 
behaviour and their developing physiology. Your report, America's 
Children and the Environment, states that children ``may be more 
vulnerable to the effects of contaminants''. Of course, in many other 
places in the report, EPA acknowledges that children are particularly 
vulnerable to these threats.
    Ms. Whitman, does this EPA accept that children are especially 
vulnerable to the effects of contaminants, or has its position on this 
changed?
    If EPA's position has changed, when was this decision made and with 
what input? Did you consult with physicians, scientists, industry, 
environmental and public health organizations? Please provide the 
committee with a list of the parties with which EPA consulted.
    If EPA's position has changed, please provide us with the 
scientific evidence that supports EPA's new position.
                              enforcement

    Question 53. Ms. Whitman, I understand that because of the recent 
passage of the Omnibus Appropriations bill that EPA has not had a 
chance to detail how it will spend those funds, so it is difficult to 
pin down many funding issues. One that I am particularly concerned 
about is Enforcement. The fiscal year 2004 request cut a total of 71 
positions in the enforcement program, from 3482 FTE in fiscal year 2002 
to 3411 FTE in fiscal year 2004. However, it is unclear how these 
resources will be distributed within the Agency for enforcement 
activities, such as inspections, compliance monitoring, investigations, 
and pollution control. It is also unclear how these figures relate to 
fiscal year 2003 funding levels.
    Please provide the committee with a detailed break down of enacted 
fiscal year 2003 enforcement funding activities.
Department of Defense Request for Exemptions from Environmental Laws
    Question 54. Recently, the Department of Defense proposed numerous 
exemptions from environmental laws--including RCRA, the Clean Air Act 
and the Clean Water Act--to facilitate training activities. Our 
environmental laws have been on the books for many years--unfortunately 
during these same years we have faced military conflict. Yet, I am not 
aware of proposals in the past to exempt military training activities 
from our environmental laws. The need for exemptions is not clear to 
me.
    One proposal is to exempt used or fired munitions on operational 
ranges from the definition of solid waste in RCRA. Ms. Whitman, would 
you support eliminating the authority of your Agency, as well as that 
of the States, to order the abatement of an imminent and substantial 
endangerment of health or the environment caused by the handling of 
these munitions?

    Question 55. Do you believe that the defense agencies should be 
exempt from current requirements to obtain Clean Water Act permits 
before they discharge pollutants into waters of the United States as 
part of military training and testing exercises?
    Response. No, I do not believe such an exemption is warranted at 
this time.

    Question 56. Another proposal would exempt military activities from 
clean air act requirements despite the fact that there are currently 
several exemptions for the military. Do you believe that defense 
agencies should not be required to do their share to clean up our air?
    No response.

    Question 57. If there are certain instances for which a waiver 
would be appropriate, why aren't the exemptions contained in current 
law for national security purposes sufficient? Have they been used in 
the past?
    No response.
                                 ______
                                 
    Responses of Administrator Christine Todd Whitman to Additional 
                     Questions from Senator Clinton
    Question 1. Administrator Whitman, I was very pleased that EPA 
released its report last month on children's environmental health. This 
is an area that we must focus on if we want to improve our nation's 
health overall, because an ounce of prevention can mean the difference 
between a long healthy life and one that is filled with chronic health 
problems and diseases.
    In the report, EPA states that ``at present, available data do not 
allow scientists to determine the role that environmental contaminants 
play in the prevalence of some childhood diseases.'' I find that 
statement very troubling.
    We need to be doing more to educate ourselves about the 
environment's impact on children's health, which will ultimately help 
us raise healthier children and reduce health care costs. According to 
a recent Mount Sinai School of Medicine study, childhood diseases of 
environmental origin cost Americans nearly $54.9 billion annually.
    One way to do this is through continued support for the EPA/NIEHS 
Centers for Children's Environmental Health and Disease Prevention 
Research, which you mention in the forward to the report. These Centers 
are addressing environmental factors that may cause or contribute to 
childhood illnesses such as asthma, or that can interfere in the proper 
growth and development of our nation's children. We have two such 
Centers in New York--one at Columbia and one at Mount Sinai--and they 
are doing great work.
    Can you tell us what the Administration has proposed in terms of 
funding for these Centers in FY04 and how it compares to current 
funding levels for the Centers? If the funding for these Centers is 
going down as we have heard that it is, I strongly urge the 
Administration to rethink these proposed cuts in funding for the 
Centers.
    Response. In 1998, EPA and the National Institute for Environmental 
Health Sciences (NIEHS) established eight Centers of Excellence for 
Children's Health and Disease Prevention Research. In 2001, EPA and 
NIEHS expanded the Children's Centers program to twelve.
    The centers established in 1998 were funded for 5 years with the 
expectation that in 2002 they would re-compete for continued funding. 
The re-competition would be open to the existing eight centers, whose 
funding is due to expire in 2003, and new institutions and consortia 
wishing to establish new Centers. Both agencies are currently 
collaborating on administering the re-competition.
    The EPA's Science Advisory Board (SAB) recommended in 2002 that the 
Agency achieve a balance between center-based research and 
solicitations for individual grants. In response to this 
recommendation, EPA will maintain a consistent level of funding for 
children's environmental health research, and redirect some funds from 
the centers to other funding mechanisms that effectively address high-
priority children's health issues. The redirected resources will be 
used to support EPA solicitations for individual Science to Achieve 
Results (STAR) grants related to children's health. Topics under 
consideration for these solicitations include childhood cancer, genetic 
markers of environmentally induced childhood illness, and dose-response 
assessment methods for developing organisms.
    The proposed funding levels are shown below:

 ----------------------------------------------------------------------------------------------------------------
                                         Children's Research      Children's Research
             Fiscal Year                       Centers            Grant Solicitations             Total
----------------------------------------------------------------------------------------------------------------
2002.................................  $ 9.0 million..........  $ 0.0 million..........  $ 9.0 million
2003.................................  $ 7.5 million..........  $ 1.5 million..........  $ 9.0 million
2004.................................  $ 6.0 million..........  $ 3.0 million..........  $ 9.0 million
----------------------------------------------------------------------------------------------------------------

    The centers focus on research to elucidate the role of 
environmental exposures in asthma and developmental disorders among 
children and provide scientists with an opportunity for collaboration 
on research programs addressing environmental contributions to 
children's health and illness. They also facilitate the translation of 
basic scientific knowledge into strategies that are aimed at reducing 
the incidence of environmentally related childhood illness. The intent 
of these centers is to establish a national network that fosters 
communication, innovation, and research excellence with the ultimate 
goal of reducing the burden of morbidity among children as a result of 
exposure to harmful environmental agents.
    Individual grants are another highly effective mechanism to pursue 
research into children's health. Grant awards can be made to a larger 
number of scientists from across a broader number of institutions, all 
of whom are working in a variety of ways toward addressing specific 
uncertainties related to children's exposures to environmental 
contaminants. Research from individual grant awards usually allows 
greater depth of investigation in a particular area instead of the 
highly complex, multi-disciplinary, but less in depth, research 
associated with centers. The key is to have a diverse research 
portfolio--some research conducted via centers and other research 
conducted via individual grants--to ensure that the widest expertise of 
investigators are contributing to the children's health research 
program and to provide opportunities for collaboration among centers 
and other individual investigators.
    For example, through our solicitations for individual grants, we 
have funded scientists who are providing detailed, valuable information 
on targeted key areas of uncertainty, including understanding the 
extent of children's exposures to pesticides and possible associated 
health effects; finding innovative, non-invasive ways to measure levels 
of toxic substances in children; and understanding how chemical 
exposures interact with children's genetic make-up to possibly produce 
adverse health outcomes.
Long Island Sound Funding
    Question 2. Administrator Whitman, in addition to the concerns 
raised by Senator Jeffords with respect to funding for Lake Champlain, 
which I would like to echo, I am very concerned about the 
Administration's request for the Long Island Sound--which once again 
has been reduced to less than half a million dollars in the 
Administration's fiscal year 2004 budget.
    Where as funding requests for other geographic initiatives such as 
the Gulf of Mexico, the Great Lakes, Chesapeake Bay, and the Florida 
Everglades all have gone up from last year's request, the request for 
the Long Island Sound remains flat and terribly low--substantially 
lower than what is currently authorized and what has traditionally been 
appropriated by Congress.
    I know my colleague on the committee, Senator Lieberman, shares my 
concerns on this issue.
    The Long Island Sound is a tremendous natural resource that is also 
under tremendous strain--and it needs our help. Like other estuaries, 
Long Island Sound abounds in fish, shellfish, and waterfowl. It 
provides feeding, breeding, nesting, and nursery areas for diverse 
animal and plant life. And there are more than 8 million people living 
within the Sound's watershed as well.
    As a result, like many other estuaries, the Long Island Sound is 
plagued by low dissolved oxygen levels and high nitrogen loads. Over a 
billion gallons of treated effluent are discharged each day from sewage 
treatment plants into the Long Island Sound--contributing over 150,000 
pounds of nitrogen per day into the Sound.
    This is a costly problem in many ways--costly to the environment, 
costly to the economy, and frankly, costly to solve. The $477,000 
included in the Administration's fiscal year 2004 budget would not even 
make the smallest dent in the needs of the Long Island Sound.
    Will you commit to work with my colleagues and me to find ways to 
direct much needed Federal resources to the Long Island Sound in fiscal 
year 2004?
    Response. I share your views regarding the importance of the Sound 
and want you to know that it continues to be a priority for this 
Administration. In addition to the $477,000 requested explicitly for 
the Long Island Sound, our request also includes $310,000 for the Long 
Island Sound through our Coastal Watersheds/National Estuary Program.
Preparedness and Response to Disasters
    Question 3. Administrator Whitman, the draft report, ``Exposure and 
Human Health Evaluation of Airborne Pollution from the World Trade 
Center Disaster,'' released by the Agency acknowledges that:

    ``(1) Persons exposed to the extremely high levels of ambient 
particulate matter and its components during the collapse of the World 
Trade Center towers and for several hours afterwards were likely to be 
at risk for immediate acute (and possibly chronic) respiratory and 
other types of symptoms.''; and
    ``(2) The first measurements of some of the contaminants were on 
September 14, while other contaminants were not measured until 
September 23. . . . . . . Because there are only limited data on these 
critical few days, exposures and potential health impacts cannot be 
evaluated with certainty for this time period.''

    The New York Daily News also pointed to findings in the report 
regarding very high levels of dioxin.
    What is the EPA doing to ensure our ability to properly respond to 
disasters of this size and scope in a way that is protective of human 
health, should they unfortunately occur again in the future? How is 
this reflected in the Agency's budget for fiscal year 2004?
    Response. Over the past year and a half EPA has made considerable 
progress toward building the capacity to respond to large-scale 
incidents; however, we have not achieved the capacity to respond to 
five simultaneous large-scale incidents. The fiscal year 2002 homeland 
security supplemental resources provided a significant boost to the 
Agency's emergency preparedness and response program. These funds 
permitted the program to hire additional response personnel (On-Scene 
Coordinators (OSCs)) and provide them and existing OSCs with 
specialized equipment and basic training necessary to respond to 
chemical and biological agents. During this period the program also 
established the Environmental Response Team West (ERT-W), which 
complements the ERT East, to provide technical expertise to our field 
response personnel for incidents that may occur in the western part of 
the country. Recently enacted fiscal year 2003 congressionally directed 
funds enable the Agency to continue these efforts.
    In addition to response activities, EPA is also taking actions that 
will reduce casualties and property damage through simple yet effective 
preparedness actions. In the past year, as Executive Secretariat of the 
Office of Homeland Security Building Air Protection workgroup, EPA 
developed guidance for release by DHS on how the public can reduce 
their exposure during an attack (Protect Your Family), and assisted 
with the development of two documents that reduce the vulnerability of 
buildings (Protecting Buildings from Airborne Chemical, Biological, and 
Radiological Attacks and Improved Building Air Filtration).
    EPA is working with the Department of Homeland Security to 
implement a biological contaminant monitoring network. This work is 
funded by the Department of Homeland Security. We are now exploring 
potential additional work on biological monitoring in fiscal year 2004.
    EPA requested $123.1 million in the fiscal year 2004 budget for 
Homeland Security responsibilities. This request includes resources to 
establish a National Decontamination Team and to provide immediate 
response capabilities to safely and effectively support decontamination 
activities related to chemical, biological, and radiological events. 
The request also includes funding for equipment and training of our 
OSCs, which will continue to advance EPA's capacity to respond to 
multiple large-scale events. EPA's fiscal year 2004 budget request also 
includes an increase to the Environmental Radiation Ambient Monitoring 
System (ERAMS) that will provide system improvements to expand and 
upgrade the system by increasing reliability and population coverage.

    Question 4. Administrator Whitman, I was very pleased that EPA 
released its report last month on children's environmental health. This 
is an area that we must focus on if we want to improve our nation's 
health overall, because an ounce of prevention can mean the difference 
between a long healthy life and one that is filled with chronic health 
problems and diseases.
    In the report, EPA states that ``at present, available data do not 
allow scientists to determine the role that environmental contaminants 
play in the prevalence of some childhood diseases.'' I find that 
statement very troubling.
    We need to be doing more to educate ourselves about the 
environment's impact on children's health, which will ultimately help 
us raise healthier children and reduce health care costs. According to 
a recent Mount Sinai School of Medicine study, childhood diseases of 
environmental origin cost Americans nearly $54.9 billion annually.
    One way to do this is through continued support for the EPA/NIEHS 
Centers for Children's Environmental Health and Disease Prevention 
Research, which you mention in the forward to the report. These Centers 
are addressing environmental factors that may cause or contribute to 
childhood illnesses such as asthma, or that can interfere in the proper 
growth and development of our nation's children. We have two such 
Centers in New York--one at Columbia and one at Mount Sinai--and they 
are doing great work.
    Can you tell us what the Administration has proposed in terms of 
funding for these Centers in FY04 and how it compares to current 
funding levels for the Centers? If the funding for these Centers is 
going down as we have heard that it is, I strongly urge the 
Administration to rethink these proposed cuts in funding for the 
Centers.
    Response. In 1998, EPA and the National Institute for Environmental 
Health Sciences (NIEHS) established eight Centers of Excellence for 
Children's Health and Disease Prevention Research. In 2001, EPA and 
NIEHS expanded the Children's Centers program to twelve.
    The centers established in 1998 were funded for 5 years with the 
expectation that in 2002 they would re-compete for continued funding. 
The re-competition would be open to the existing eight centers, whose 
funding is due to expire in 2003, and new institutions and consortia 
wishing to establish new Centers. Both agencies are currently 
collaborating on administering the re-competition.
    The EPA's Science Advisory Board (SAB) recommended in 2002 that the 
Agency achieve a balance between center-based research and 
solicitations for individual grants. In response to this 
recommendation, EPA will maintain a consistent level of funding for 
children's environmental health research, and redirect some funds from 
the centers to other funding mechanisms that effectively address high-
priority children's health issues. The redirected resources will be 
used to support EPA solicitations for individual Science to Achieve 
Results (STAR) grants related to children's health. Topics under 
consideration for these solicitations include childhood cancer, genetic 
markers of environmentally induced childhood illness, and dose-response 
assessment methods for developing organisms.
    The proposed funding levels are shown below:

----------------------------------------------------------------------------------------------------------------
                                         Children's Research      Children's Research
             Fiscal Year                       Centers            Grant Solicitations             Total
----------------------------------------------------------------------------------------------------------------
2002.................................  $ 9.0 million..........  $ 0.0 million..........  $ 9.0 million
2003.................................  $ 7.5 million..........  $ 1.5 million..........  $ 9.0 million
2004.................................  $ 6.0 million..........  $ 3.0 million..........  $ 9.0 million
----------------------------------------------------------------------------------------------------------------

    The centers focus on research to elucidate the role of 
environmental exposures in asthma and developmental disorders among 
children and provide scientists with an opportunity for collaboration 
on research programs addressing environmental contributions to 
children's health and illness. They also facilitate the translation of 
basic scientific knowledge into strategies that are aimed at reducing 
the incidence of environmentally related childhood illness. The intent 
of these centers is to establish a national network that fosters 
communication, innovation, and research excellence with the ultimate 
goal of reducing the burden of morbidity among children as a result of 
exposure to harmful environmental agents.
    Individual grants are another highly effective mechanism to pursue 
research into children's health. Grant awards can be made to a larger 
number of scientists from across a broader number of institutions, all 
of whom are working in a variety of ways toward addressing specific 
uncertainties related to children's exposures to environmental 
contaminants. Research from individual grant awards usually allows 
greater depth of investigation in a particular area instead of the 
highly complex, multi-disciplinary, but less in depth, research 
associated with centers. The key is to have a diverse research 
portfolio--some research conducted via centers and other research 
conducted via individual grants--to ensure that the widest expertise of 
investigators are contributing to the children's health research 
program and to provide opportunities for collaboration among centers 
and other individual investigators.
    For example, through our solicitations for individual grants, we 
have funded scientists who are providing detailed, valuable information 
on targeted key areas of uncertainty, including understanding the 
extent of children's exposures to pesticides and possible associated 
health effects; finding innovative, non-invasive ways to measure levels 
of toxic substances in children; and understanding how chemical 
exposures interact with children's genetic make-up to possibly produce 
adverse health outcomes.

    Question 5. Administrator Whitman, the Consumer Product Safety 
Commission recently released a report documenting the increased risk of 
bladder and lung cancer for children who play on playground equipment 
made from arsenic-treated wood. Recently, EPA announced an agreement 
with manufacturers to phaseout consumer use of arsenic treated wood by 
the end of this year. Can you update the committee on the progress 
being made under this voluntary phaseout? I understand that EPA is in 
the process of conducting a risk assessment for arsenic treated wood. 
Can you tell us when this risk assessment will be completed?
    Response. Registrants of the pesticide requested voluntary 
cancellation of most residential uses of chromated copper arsenate 
(CCA) in February 2002. The Agency requested public comment on these 
requests and after evaluating nearly 7000 comments, the Agency issued 
final cancellation orders on March 17, 2003. Product labels must be 
amended which will state that treatment of wood for virtually all 
residential uses of wood must stop after December 30, 2003, i.e., it 
will be illegal to treat wood for these residential uses after this 
date.
    Even though the Agency reached an agreement with industry to 
phaseout the uses of CCA for treating wood used in residential 
settings, we are continuing the children's risk assessment process as 
well as our review of those remaining uses that are not part of the 
voluntary cancellation/use termination. It is important to note also 
that EPA has not concluded that CCA-treated wood poses unreasonable 
risks to the public for existing structures made with CCA-treated wood. 
We are continuing to evaluate potential risks from structures already 
in place and will continue to evaluate those remaining uses that are 
not included in the voluntary actions.
    We are moving forward with our probabilistic assessment of 
potential cancer risks to children from exposure to CCA in residential 
settings and we are enhancing the information upon which we will base 
our decision about such risks. In particular, just recently three 
studies have been completed that will greatly benefit our understanding 
of the levels of exposure that may be possible from treated wood. The 
first study, a ``surface residue bioavailability study,'' examined the 
surface residues of arsenic on wood and estimated how much of that 
residue can be absorbed by the body from the wood surface. The second 
study is a ``soil residue bioavailability study,'' which estimates the 
potential arsenic dose absorbed from soil contact and incidental 
ingestion through the mouth by children. Those results are being 
evaluated. The third study of importance is a ``hand wipe study'' which 
estimates the potential exposure to arsenic when the hand comes in 
contact with treated wood and correlates this physical activity with 
potential exposure to arsenic. Results from these studies have been 
submitted to the Agency. These data will be fully evaluated in 
developing a draft children's risk assessment which we intend to take 
to our Scientific Advisory Panel (SAP) for comment in December. We 
expect to release the draft children's risk assessment publicly several 
weeks prior to the SAP meeting. We intend to fully consider any 
recommendations made by the SAP in finalizing the risk assessment. An 
additional study that we are collaborating on with the Commission and 
our Office of Research and Development is to develop data on the 
effectiveness of sealants in preventing exposure to residues of CCA on 
treated wood.
    EPA expects to evaluate those uses that are not part of the 
voluntary cancellation through the standard 6-phase public 
participation process established for pesticide reregistration. This 
public process ensures active stakeholder participation throughout and 
the Agency intends to include the Commission in our evaluation process.

                                   - 
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